[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2009 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
7
Parts 210 to 299
Revised as of January 1, 2009
Agriculture
________________________
Containing a codification of documents of general
applicability and future effect
As of January 1, 2009
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
Subtitle B--Regulations of the Department of Agriculture
(Continued)
Chapter II--Food and Nutrition Service, Department
of Agriculture 5
Finding Aids:
Table of CFR Titles and Chapters........................ 1057
Alphabetical List of Agencies Appearing in the CFR...... 1077
List of CFR Sections Affected........................... 1087
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume, use title,
part, and section number.
Thus, 7 CFR 210.1 refers
to title 7, part 210,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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citations for the regulations are referred to by volume number and page
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
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1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
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approval is based are:
(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
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(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
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the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
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separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
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the daily Federal Register.
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the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2009.
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1759, 1760-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 2009.
The Food and Nutrition Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199.
For this volume, Rob Sheehan was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Michael L.
White, assisted by Ann Worley.
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 210 to 299)
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SUBTITLE B--Regulations of the Department of Agriculture (Continued)
Part
chapter ii--Food and Nutrition Service, Department of
Agriculture............................................... 210
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
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Editorial Note: Nomenclature changes to chapter II appear at 60 FR
19490, Apr. 19, 1995, and 63 FR 9727, Feb. 26, 1998.
SUBCHAPTER A--CHILD NUTRITION PROGRAMS
Part Page
210 National School Lunch Program............... 7
215 Special Milk Program for Children........... 71
220 School Breakfast Program.................... 90
225 Summer Food Service Program................. 126
226 Child and Adult Care Food Program........... 173
227 Nutrition Education and Training Program.... 278
235 State administrative expense funds.......... 288
240 Cash in lieu of donated foods............... 299
245 Determining eligibility for free and reduced
price meals and free milk in schools.... 305
246 Special Supplemental Nutrition Program for
Women, Infants and Children............. 341
247 Commodity Supplemental Food Program......... 445
248 WIC Farmers' Market Nutrition Program (FMNP) 469
249 Senior Farmers' Market Nutrition Program
(SFMNP)................................. 490
SUBCHAPTER B--GENERAL REGULATIONS AND POLICIES--FOOD DISTRIBUTION
250 Donation of foods for use in the United
States, its territories and possessions
and areas under its jurisdiction........ 518
251 The Emergency Food Assistance Program....... 569
252 National Commodity Processing Program....... 581
253 Administration of the Food Distribution
Program for households on Indian
reservations............................ 590
254 Administration of the Food Distribution
Program for Indian households in
Oklahoma................................ 619
SUBCHAPTER C--FOOD STAMP AND FOOD DISTRIBUTION PROGRAM
271 General information and definitions......... 621
[[Page 6]]
272 Requirements for participating State
agencies................................ 639
273 Certification of eligible households........ 695
274 Issuance and use of coupons................. 870
275 Performance reporting system................ 909
276 State agency liabilities and Federal
sanctions............................... 948
277 Payments of certain administrative costs of
State agencies.......................... 957
278 Participation of retail food stores,
wholesale food concerns and insured
financial institutions.................. 991
279 Administrative and judicial review--food
retailers and food wholesalers.......... 1018
280 Emergency food assistance for victims of
disasters............................... 1022
281 Administration of the Food Stamp Program on
Indian reservations..................... 1023
282 Demonstration, research, and evaluation
projects................................ 1029
283 Appeals of quality control (``QC'') claims.. 1029
284
Provision of a nutrition assistance program for the Commonwealth of the
Northern Mariana Islands (CNMI) [Reserved]
285 Provision of a nutrition assistance grant
for the Commonwealth of Puerto Rico..... 1049
SUBCHAPTER D--GENERAL REGULATIONS
295 Availability of information and records to
the public.............................. 1052
296-299
[Reserved]
[[Page 7]]
SUBCHAPTER A_CHILD NUTRITION PROGRAMS
PART 210_NATIONAL SCHOOL LUNCH PROGRAM--Table of Contents
Subpart A_General
Sec.
210.1 General purpose and scope.
210.2 Definitions.
210.3 Administration.
Subpart B_Reimbursement Process for States and School Food Authorities
210.4 Cash and donated food assistance to States.
210.5 Payment process to States.
210.6 Use of Federal funds.
210.7 Reimbursement for school food authorities.
210.8 Claims for reimbursement.
Subpart C_Requirements for School Food Authority Participation
210.9 Agreement with State agency.
210.10 Nutrition standards and menu planning approaches for lunches and
requirements for afterschool snacks.
210.11 Competitive food services.
210.12 Student, parent and community involvement.
210.13 Facilities management.
210.14 Resource management.
210.15 Reporting and recordkeeping.
210.16 Food service management companies.
Subpart D_Requirements for State Agency Participation
210.17 Matching Federal funds.
210.18 Administrative reviews.
210.19 Additional responsibilities.
210.20 Reporting and recordkeeping.
Subpart E_State Agency and School Food Authority Responsibilities
210.21 Procurement.
210.22 Audits.
210.23 Other responsibilities.
Subpart F_Additional Provisions
210.24 Withholding payments.
210.25 Suspension, termination and grant closeout procedures.
210.26 Penalties.
210.27 Educational prohibitions.
210.28 Pilot project exemptions.
210.29 Management evaluations.
210.30 Regional office addresses.
210.31 OMB control numbers.
Appendix A to Part 210--Alternate Foods for Meals
Appendix B to Part 210--Categories of Foods of Minimal Nutritional Value
Appendix C to Part 210--Child Nutrition Labeling Program
Authority: 42 U.S.C. 1751-1760, 1779.
Source: 53 FR 29147, Aug. 2, 1988, unless otherwise noted.
Subpart A_General
Sec. 210.1 General purpose and scope.
(a) Purpose of the program. Section 2 of the National School Lunch
Act (42 U.S.C. 1751), states: ``It is declared to be the policy of
Congress, as a measure of national security, to safeguard the health and
well-being of the Nation's children and to encourage the domestic
consumption of nutritious agricultural commodities and other food, by
assisting the States, through grants-in-aid and other means, in
providing an adequate supply of food and other facilities for the
establishment, maintenance, operation, and expansion of nonprofit school
lunch programs.'' Pursuant to this act, the Department provides States
with general and special cash assistance and donations of foods acquired
by the Department to be used to assist schools in serving nutritious
lunches to children each school day. In furtherance of Program
objectives, participating schools shall serve lunches that are
nutritionally adequate, as set forth in these regulations, and shall to
the extent practicable, ensure that participating children gain a full
understanding of the relationship between proper eating and good health.
(b) Scope of the regulations. This part sets forth the requirements
for participation in the National School Lunch and Commodity School
Programs. It specifies Program responsibilities of State and local
officials in the areas of program administration, preparation and
service of nutritious lunches, payment of funds, use of program funds,
program monitoring, and reporting and recordkeeping requirements.
Sec. 210.2 Definitions.
For the purpose of this part:
[[Page 8]]
7 CFR part 3015 means the Uniform Federal Assistance Regulations
published by the Department to implement certain policies applicable to
all Department programs. The applicable provisions deal with competition
for discretionary grants and cooperative agreements, costs requiring
prior approval, acknowledgement of Department support in publications
and audiovisuals produced under Department programs, intergovernmental
review of Department programs under Executive Order 12372, and certain
miscellaneous Department requirements.
7 CFR part 3016 means the Department's Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments. 7 CFR part 3016 covers requirements for awards and
subawards to State and local governmental organizations under Department
programs.
7 CFR part 3018 means the Department's Common Rule regarding
Governmentwide New Restrictions on Lobbying. Part 3018 implements the
requirements established by section 319 of the 1990 Appropriations Act
for the Department of Interior and Related Agencies (Pub. L. 101-121).
7 CFR part 3019 means the Department's Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Non-Profit Organizations. 7 CFR part
3019 covers requirements for awards and subawards to nongovernmental,
nonprofit organizations under Department programs.
7 CFR part 3052 means the Department's regulations implementing OMB
Circular A-133, ``Audits of State, Local Governments, and Non-Profit
Organizations.'' (For availability of OMB Circulars referenced in this
definition, see 5 CFR 1310.3.)
Act means the National School Lunch Act, as amended.
Afterschool care program means a program providing organized child
care services to enrolled school-age children afterschool hours for the
purpose of care and supervision of children. Those programs shall be
distinct from any extracurricular programs organized primarily for
scholastic, cultural or athletic purposes.
Applicable credits shall have the meaning established in Office of
Management and Budget Circulars A-87, C(4) and A-122, Attachment A,
A(5), respectively. For availability of OMB circulars referenced in this
definition see 5 CFR 1310.3.
Attendance factor means a percentage developed no less than once
each school year which accounts for the difference between enrollment
and attendance. The attendance factor may be developed by the school
food authority, subject to State agency approval, or may be developed by
the State agency. In the absence of a local or State attendance factor,
the school food authority shall use an attendance factor developed by
FNS. When taking the attendance factor into consideration, school food
authorities shall assume that all children eligible for free and reduced
price lunches attend school at the same rate as the general school
population.
Average Daily Participation means the average number of children, by
eligibility category, participating in the Program each operating day.
These numbers are obtained by dividing (a) the total number of free
lunches claimed during a reporting period by the number of operating
days in the same period; (b) the total number of reduced price lunches
claimed during a reporting period by the number of operating days in the
same period; and (c) the total number of paid lunches claimed during a
reporting period by the number of operating days in the same period.
Child means--(a) a student of high school grade or under as
determined by the State educational agency, who is enrolled in an
educational unit of high school grade or under as described in
paragraphs (a) and (b) of the definition of ``School,'' including
students who are mentally or physically disabled as defined by the State
and who are participating in a school program established for the
mentally or physically disabled; or (b) a person under 21 chronological
years of age who is enrolled in an institution or center as described in
paragraph (c) of the definition of ``School;'' or (c) For purposes of
reimbursement for meal supplements served in afterschool care programs,
an individual enrolled in an afterschool care
[[Page 9]]
program operated by an eligible school who is 12 years of age or under,
or in the case of children of migrant workers and children with
disabilities, not more than 15 years of age.
CND means the Child Nutrition Division of the Food and Nutrition
Service of the Department.
Commodity School Program means the Program under which participating
schools operate a nonprofit lunch program in accordance with this part
and receive donated food assistance in lieu of general cash assistance.
Schools participating in the Commodity School Program shall also receive
special cash and donated food assistance in accordance with Sec.
210.4(c).
Contractor means a commercial enterprise, public or nonprofit
private organization or individual that enters into a contract with a
school food authority.
Cost reimbursable contract means a contract that provides for
payment of incurred costs to the extent prescribed in the contract, with
or without a fixed fee.
Days means calendar days unless otherwise specified.
Department means the United States Department of Agriculture.
Distributing agency means a State agency which enters into an
agreement with the Department for the distribution to schools of donated
foods pursuant to part 250 of this chapter.
Donated foods means food commodities donated by the Department for
use in nonprofit lunch programs.
Fiscal year means a period of 12 calendar months beginning October 1
of any year and ending with September 30 of the following year.
Fixed fee means an agreed upon amount that is fixed at the inception
of the contract. In a cost reimbursable contract, the fixed fee includes
the contractor's direct and indirect administrative costs and profit
allocable to the contract.
FNS means the Food and Nutrition Service, United States Department
of Agriculture.
FNSRO means the appropriate Regional Office of the Food and
Nutrition Service of the Department.
Food component means one of the four food groups which comprise
reimbursable meals planned under a food-based menu planning approach.
The four food components are: meat/meat alternate; grains/breads;
fruits/vegetables; and milk.
Food item means one of the five foods offered in lunches under a
food-based menu planning approach: meat/meat alternate; grains/breads;
two servings of fruits/vegetables; and milk.
Food service management company means a commercial enterprise or a
nonprofit organization which is or may be contracted with by the school
food authority to manage any aspect of the school food service.
Free lunch means a lunch served under the Program to a child from a
household eligible for such benefits under 7 CFR part 245 and for which
neither the child nor any member of the household pays or is required to
work.
Local educational agency means a public board of education or other
public or private nonprofit authority legally constituted within a State
for either administrative control or direction of, or to perform a
service function for, public or private nonprofit elementary schools or
secondary schools in a city, county, township, school district, or other
political subdivision of a State, or for a combination of school
districts or counties that is recognized in a State as an administrative
agency for its public or private nonprofit elementary schools or
secondary schools. The term also includes any other public or private
nonprofit institution or agency having administrative control and
direction of a public or private nonprofit elementary school or
secondary school, including residential child care institutions, Bureau
of Indian Affairs schools, and educational service agencies and
consortia of those agencies, as well as the State educational agency in
a State or territory in which the State educational agency is the sole
educational agency for all public or private nonprofit schools.
Lunch means a meal service that meets the applicable nutrition
standards and portion sizes in Sec. 210.10 for lunches.
Menu item means, under Nutrient Standard Menu Planning or Assisted
Nutrient Standard Menu Planning, any single food or combination of
foods. All
[[Page 10]]
menu items or foods offered as part of the reimbursable meal may be
considered as contributing towards meeting the nutrition standards
provided in Sec. 210.10, except for those foods that are considered as
foods of minimal nutritional value as provided for in Sec. 210.11(a)(2)
which are not offered as part of a menu item in a reimbursable meal. For
the purposes of a reimbursable lunch, a minimum of three menu items must
be offered, one of which must be an entree (a combination of foods or a
single food item that is offered as the main course) and one of which
must be fluid milk. Under offer versus serve, a student shall select, at
a minimum, an entree and one other menu item. If more than three menu
items are offered, the student may decline up to two menu items;
however, the entree cannot be declined.
National School Lunch Program means the Program under which
participating schools operate a nonprofit lunch program in accordance
with this part. General and special cash assistance and donated food
assistance are made available to schools in accordance with this part.
Net cash resources means all monies, as determined in accordance
with the State agency's established accounting system, that are
available to or have accrued to a school food authority's nonprofit
school food service at any given time, less cash payable. Such monies
may include, but are not limited to, cash on hand, cash receivable,
earnings on investments, cash on deposit and the value of stocks, bonds
or other negotiable securities.
Nonprofit means, when applied to schools or institutions eligible
for the Program, exempt from income tax under section 501(c)(3) of the
Internal Revenue Code of 1986.
Nonprofit school food service means all food service operations
conducted by the school food authority principally for the benefit of
schoolchildren, all of the revenue from which is used solely for the
operation or improvement of such food services.
Nonprofit school food service account means the restricted account
in which all of the revenue from all food service operations conducted
by the school food authority principally for the benefit of school
children is retained and used only for the operation or improvement of
the nonprofit school food service.
Nutrient Standard Menu Planning/Assisted Nutrient Standard Menu
Planning means ways to develop lunch menus based on the analysis for
nutrients in the menu items and foods offered over a school week to
determine if specific levels for a set of key nutrients and calories
were met in accordance with Sec. 210.10(i)(5). However, for the
purposes of Assisted Nutrient Standard Menu Planning, lunch menu
planning and analysis are completed by other entities and must
incorporate the production quantities needed to accommodate the specific
service requirements of a particular school or school food authority in
accordance with Sec. 210.10(j).
OIG means the Office of the Inspector General of the Department.
Point of Service means that point in the food service operation
where a determination can accurately be made that a reimbursable free,
reduced price or paid lunch has been served to an eligible child.
Program means the National School Lunch Program and the Commodity
School Program.
Reduced price lunch means a lunch served under the Program: (a) to a
child from a household eligible for such benefits under 7 CFR part 245;
(b) for which the price is less than the school food authority
designated full price of the lunch and which does not exceed the maximum
allowable reduced price specified under 7 CFR part 245; and (c) for
which neither the child nor any member of the household is required to
work.
Reimbursement means Federal cash assistance including advances paid
or payable to participating schools for lunches meeting the requirements
of Sec. 210.10 and served to eligible children.
Revenue, when applied to nonprofit school food service, means all
monies received by or accruing to the nonprofit school food service in
accordance with the State agency's established accounting system
including, but not limited to, children's payments, earnings on
investments, other local revenues, State revenues, and Federal cash
reimbursements.
[[Page 11]]
School means: (a) An educational unit of high school grade or under,
recognized as part of the educational system in the State and operating
under public or nonprofit private ownership in a single building or
complex of buildings; (b) any public or nonprofit private classes of
preprimary grade when they are conducted in the aforementioned schools;
or (c) any public or nonprofit private residential child care
institution, or distinct part of such institution, which operates
principally for the care of children, and, if private, is licensed to
provide residential child care services under the appropriate licensing
code by the State or a subordinate level of government, except for
residential summer camps which participate in the Summer Food Service
Program for Children, Job Corps centers funded by the Department of
Labor, and private foster homes. The term ``residential child care
institutions'' includes, but is not limited to: homes for the mentally,
emotionally or physically impaired, and unmarried mothers and their
infants; group homes; halfway houses; orphanages; temporary shelters for
abused children and for runaway children; long-term care facilities for
chronically ill children; and juvenile detention centers. A long-term
care facility is a hospital, skilled nursing facility, intermediate care
facility, or distinct part thereof, which is intended for the care of
children confined for 30 days or more.
School food authority means the governing body which is responsible
for the administration of one or more schools; and has the legal
authority to operate the Program therein or be otherwise approved by FNS
to operate the Program.
School week means the period of time used to determine compliance
with the nutrition standards and the appropriate calorie and nutrient
levels in Sec. 210.10. Further, if applicable, school week is the basis
for conducting Nutrient Standard Menu Planning or Assisted Nutrient
Standard Menu Planning for lunches as provided in Sec. 210.10(i) and
Sec. 210.10(j). The period shall be a normal school week of five
consecutive days; however, to accommodate shortened weeks resulting from
holidays and other scheduling needs, the period shall be a minimum of
three consecutive days and a maximum of seven consecutive days. Weeks in
which school lunches are offered less than three times shall be combined
with either the previous or the coming week.
School year means a period of 12 calendar months beginning July 1 of
any year and ending June 30 of the following year.
Secretary means the Secretary of Agriculture.
State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
State agency means (a) the State educational agency; (b) any other
agency of the State which has been designated by the Governor or other
appropriate executive or legislative authority of the State and approved
by the Department to administer the Program in schools, as specified in
Sec. 210.3(b); or (c) the FNSRO, where the FNSRO administers the
Program as specified in Sec. 210.3(c).
State educational agency means, as the State legislature may
determine, (a) the chief State school officer (such as the State
Superintendent of Public Instruction, Commissioner of Education, or
similar officer), or (b) a board of education controlling the State
department of education.
Student with disabilities means any child who has a physical or
mental impairment as defined in Sec. 15b.3 of the Department's
nondiscrimination regulations (7 CFR part 15b).
Subsidized lunch (paid lunch) means a lunch served to children who
are either not eligible for or elect not to receive the free or reduced
price benefits offered under 7 CFR part 245. The Department subsidizes
each paid lunch with both general cash assistance and donated foods.
Although a paid lunch student pays for a large portion of his or her
lunch, the Department's subsidy accounts for a significant portion of
the cost of that lunch.
Yogurt means commercially prepared coagulated milk products obtained
by the fermentation of specific bacteria,
[[Page 12]]
that meet milk fat or milk solid requirements and to which flavoring
foods or ingredients may be added. These products are covered by the
Food and Drug Administration's Definition and Standard of Identity for
yogurt, lowfat yogurt, and nonfat yogurt, 21 CFR 131.200, 21 CFR
131.203, and 21 CFR 131.206, respectively.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12580, Mar. 28, 1989; 56
FR 32939, July 17, 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, June
13, 1995; 62 FR 10189, Mar. 6, 1997; 64 FR 50740, Sept. 20, 1999; 65 FR
26912, May 9, 2000; 71 FR 39515, July 13, 2006; 72 FR 10892, Mar. 12,
2007; 72 FR 61490, Oct. 31, 2007; 72 FR 63790, Nov. 13, 2007]
Sec. 210.3 Administration.
(a) FNS. FNS will act on behalf of the Department in the
administration of the Program. Within FNS, the CND will be responsible
for Program administration.
(b) States. Within the States, the responsibility for the
administration of the Program in schools, as defined in Sec. 210.2,
shall be in the State educational agency. If the State educational
agency is unable to administer the Program in public or private
nonprofit residential child care institutions or nonprofit private
schools, then Program administration for such schools may be assumed by
FNSRO as provided in paragraph (c) of this section, or such other agency
of the State as has been designated by the Governor or other appropriate
executive or legislative authority of the State and approved by the
Department to administer such schools. Each State agency desiring to
administer the Program shall enter into a written agreement with the
Department for the administration of the Program in accordance with the
applicable requirements of this part; parts 235 and 245 of this chapter;
parts 15, 15a, 15b, 3015 and 3016 of this title; and FNS instructions.
(c) FNSRO. The FNSRO will administer the Program in nonprofit
private schools or public or nonprofit private residential child care
institutions if the State agency is prohibited by law from disbursing
Federal funds paid to such schools. In addition, the FNSRO will continue
to administer the Program in those States in which nonprofit private
schools or public or nonprofit private residential child care
institutions have been under continuous FNS administration since October
1, 1980, unless the administration of the Program in such schools is
assumed by the State. The FNSRO will, in each State in which it
administers the Program, assume all responsibilities of a State agency
as set forth in this part and part 245 of this chapter as appropriate.
References in this part to ``State agency'' include FNSRO, as
applicable, when it is the agency administering the Program.
(d) School food authorities. The school food authority shall be
responsible for the administration of the Program in schools. State
agencies shall ensure that school food authorities administer the
Program in accordance with the applicable requirements of this part;
part 245 of this chapter; parts 15, 15a, 15b, and 3016 or 3019, as
applicable, of this title; and FNS instructions.
[53 FR 29147, Aug. 2, 1988, as amended at 71 FR 39515, July 13, 2006]
Subpart B_Reimbursement Process for States and School Food Authorities
Sec. 210.4 Cash and donated food assistance to States.
(a) General. To the extent funds are available, FNS will make cash
assistance available in accordance with the provisions of this section
to each State agency for lunches and meal supplements served to children
under the National School Lunch and Commodity School Programs. To the
extent donated foods are available, FNS will provide donated food
assistance to distributing agencies for each lunch served in accordance
with the provisions of this part and part 250 of this chapter.
(b) Assistance for the National School Lunch Program. The Secretary
will make cash and/or donated food assistance available to each State
agency and distributing agency, as appropriate, administering the
National School Lunch Program, as follows:
(1) Cash assistance for lunches: Cash assistance payments are
composed of a
[[Page 13]]
general cash assistance payment, authorized under section 4 of the Act,
and a special cash assistance payment, authorized under section 11 of
the Act. General cash assistance is provided to each State agency for
all lunches served to children in accordance with the provisions of the
National School Lunch Program. Special cash assistance is provided to
each State agency for lunches served under the National School Lunch
Program to children determined eligible for free or reduced price
lunches in accordance with part 245 of this chapter. The total general
cash assistance paid to each State for any fiscal year shall not exceed
the lesser of amounts reported to FNS as reimbursed to school food
authorities in accordance with Sec. 210.5(d)(3) or the total calculated
by multiplying the number of lunches reported in accordance with Sec.
210.5(d)(1) for each month of service during the fiscal year, by the
applicable national average payment rate prescribed by FNS. The total
special assistance paid to each State for any fiscal year shall not
exceed the lesser of amounts reported to FNS as reimbursed to school
food authorities in accordance with Sec. 210.5(d)(3) or the total
calculated by multiplying the number of free and reduced price lunches
reported in accordance with Sec. 210.5(d)(1) for each month of service
during the fiscal year by the applicable national average payment rate
prescribed by FNS. In accordance with section 11 of the Act, FNS will
prescribe annual adjustments to the per meal national average payment
rate (general cash assistance) and the special assistance national
average payment rates (special cash assistance) which are effective on
July 1 of each year. These adjustments, which reflect changes in the
food away from home series of the Consumer Price Index for all Urban
Consumers, are annually announced by Notice in July of each year in the
Federal Register. FNS will also establish maximum per meal rates of
reimbursement within which a State may vary reimbursement rates to
school food authorities. These maximum rates of reimbursement are
established at the same time and announced in the same Notice as the
national average payment rates.
(2) Donated food assistance. For each school year, FNS will provide
distributing agencies with donated foods for lunches served under the
National School Lunch Program as provided under part 250 of this
chapter. The per lunch value of donated food assistance is adjusted by
the Secretary annually to reflect changes as required under section 6 of
the Act. These adjustments, which reflect changes in the Price Index for
Foods Used in Schools and Institutions, are effective on July 1 of each
year and are announced by Notice in the Federal Register in July of each
year.
(3) Cash assistance for meal supplements. For those eligible schools
(as defined in Sec. 210.10(n)(1)) operating afterschool care programs
and electing to serve meal supplements to enrolled children, funds shall
be made available to each State agency, each school year in an amount no
less than the sum of the products obtained by multiplying:
(i) The number of meal supplements served in the afterschool care
program within the State to children from families that do not satisfy
the income standards for free and reduced price school meals by 2.75
cents;
(ii) The number of meal supplements served in the afterschool care
program within the State to children from families that satisfy the
income standard for free school meals by 30 cents;
(iii) The number of meal supplements served in the afterschool care
program within the State to children from families that satisfy the
income standard for reduced price school meals by 15 cents.
(4) The rates in paragraph (b)(3) are the base rates established in
August 1981 for the CACFP. FNS shall prescribe annual adjustments to
these rates in the same Notice as the National Average Payment Rates for
lunches. These adjustments shall ensure that the reimbursement rates for
meal supplements served under this part are the same as those
implemented for meal supplements in the CACFP.
(c) Assistance for the Commodity School Program. FNS will make
special cash assistance available to each State agency for lunches
served in commodity schools in the same manner as
[[Page 14]]
special cash assistance is provided in the National School Lunch
Program. Payment of such amounts to State agencies is subject to the
reporting requirements contained in Sec. 210.5(d). FNS will provide
donated food assistance in accordance with part 250 of this chapter. Of
the total value of donated food assistance to which it is entitled, the
school food authority may elect to receive cash payments of up to 5
cents per lunch served in its commodity school(s) for donated foods
processing and handling expenses. Such expenses include any expenses
incurred by or on behalf of a commodity school for processing or other
aspects of the preparation, delivery, and storage of donated foods. The
school food authority may have all or part of these cash payments
retained by the State agency for use on its behalf for processing and
handling expenses by the State agency or it may authorize the State
agency to transfer to the distributing agency all or any part of these
payments for use on its behalf for these expenses. Payment of such
amounts to State agencies is subject to the reporting requirements
contained in Sec. 210.5(d). The total value of donated food assistance
is calculated on a school year basis by adding:
(1) The applicable national average payment rate (general cash
assistance) prescribed by the Secretary for the period of July 1 through
June 30 multiplied by the total number of lunches served during the
school year under the Commodity School Program; and
(2) The national per lunch average value of donated foods prescribed
by the Secretary for the period of July 1 through June 30 multiplied by
the total number of lunches served during the school year under the
Commodity School Program.
[53 FR 29147, Aug. 2, 1988, as amended at 58 FR 42487, Aug. 10, 1993; 60
FR 31207, June 13, 1995; 65 FR 26912, May 9, 2000]
Sec. 210.5 Payment process to States.
(a) Grant award. FNS will specify the terms and conditions of the
State agency's grant in a grant award document and will generally make
payments available by means of a Letter of Credit issued in favor of the
State agency. The State agency shall obtain funds for reimbursement to
participating school food authorities through procedures established by
FNS in accordance with 7 CFR part 3016. State agencies shall limit
requests for funds to such times and amounts as will permit prompt
payment of claims or authorized advances. The State agency shall
disburse funds received from such requests without delay for the purpose
for which drawn. FNS may, at its option, reimburse a State agency by
Treasury Check. FNS will pay by Treasury Check with funds available in
settlement of a valid claim if payment for that claim cannot be made
within the grant closeout period specified in paragraph (d) of this
section.
(b) Cash-in-lieu of donated foods. All Federal funds to be paid to
any State in place of donated foods will be made available as provided
in part 240 of this chapter.
(c) Recovery of funds. FNS will recover any Federal funds made
available to the State agency under this part which are in excess of
obligations reported at the end of each fiscal year in accordance with
the reconciliation procedures specified in paragraph (d) of this
section. Such recoveries shall be reflected by a related adjustment in
the State agency's Letter of Credit.
(d) Substantiation and reconciliation process. Each State agency
shall maintain Program records as necessary to support the reimbursement
payments made to school food authorities under Sec. 210.7 and Sec.
210.8 and the reports submitted to FNS under this paragraph. The State
agency shall ensure such records are retained for a period of 3 years or
as otherwise specified in Sec. 210.23(c).
(1) Monthly report. Each State agency shall submit a final Report of
School Program Operations (FNS-10) to FNS for each month. The final
reports shall be limited to claims submitted in accordance with Sec.
210.8 of this part. For the month of October, the final report shall
include the total number of children approved for free lunches, the
total number of children approved for reduced price lunches, and the
total number of children enrolled in participating public schools,
private schools, and residential child care institutions, respectively,
as of the last day of operation in October. The final reports
[[Page 15]]
shall be postmarked and/or submitted no later than 90 days following the
last day of the month covered by the report. States shall not receive
Program funds for any month for which the final report is not submitted
within this time limit unless FNS grants an exception. Upward
adjustments to a State's report shall not be made after 90 days from the
month covered by the report unless authorized by FNS. Downward
adjustments to a State's report shall always be made regardless of when
it is determined that such adjustments are necessary. FNS authorization
is not required for downward adjustments. Any adjustments to a State's
report shall be reported to FNS in accordance with procedures
established by FNS.
(2) Quarterly report. Each State agency shall also submit to FNS a
quarterly Financial Status Report (SF-269) on the use of Program funds.
Such reports shall be postmarked and/or submitted no later than 30 days
after the end of each fiscal year quarter.
(3) End of year report. Each State agency shall submit a final
Financial Status Report (SF-269) for each fiscal year. This final fiscal
year grant closeout report shall be postmarked and/or submitted to FNS
within 120 days after the end of each fiscal year or part thereof that
the State agency administered the Program. Obligations shall be reported
only for the fiscal year in which they occur. FNS will not be
responsible for reimbursing Program obligations reported later than 120
days after the close of the fiscal year in which they were incurred.
Grant closeout procedures are to be carried out in accordance with 7 CFR
part 3016.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12580, Mar. 28, 1989; 56
FR 32939, July 17, 1991; 71 FR 39516, July 13, 2006]
Sec. 210.6 Use of Federal funds.
General. State agencies shall use Federal funds made available under
the Program to reimburse or make advance payments to school food
authorities in connection with lunches and meal supplements served in
accordance with the provisions of this part; except that, with the
approval of FNS, any State agency may reserve an amount up to one
percent of the funds earned in any fiscal year under this part for use
in carrying out special developmental projects. Advance payments to
school food authorities may be made at such times and in such amounts as
are necessary to meet the current fiscal obligations. All Federal funds
paid to any State in place of donated foods shall be used as provided in
part 240 of this chapter.
[53 FR 29147, Aug. 2, 1988, as amended at 58 FR 42487, Aug. 10, 1993]
Sec. 210.7 Reimbursement for school food authorities.
(a) General. Reimbursement payments to finance nonprofit school food
service operations shall be made only to school food authorities
operating under a written agreement with the State agency. Subject to
the provisions of Sec. 210.8(c), such payments may be made for lunches
and meal supplements served in accordance with provisions of this part
and part 245 in the calendar month preceding the calendar month in which
the agreement is executed. These reimbursement payments include general
cash assistance for all lunches served to children under the National
School Lunch Program and special cash assistance payments for free or
reduced price lunches served to children determined eligible for such
benefits under the National School Lunch and Commodity School Programs.
Reimbursement payments shall also be made for meal supplements served to
eligible children in afterschool care programs in accordance with the
rates established in Sec. 210.4(b)(3). Approval shall be in accordance
with part 245 of this chapter.
(b) Assignment of rates. At the beginning of each school year, State
agencies shall establish the per meal rates of reimbursement for school
food authorities participating in the Program. These rates of
reimbursement may be assigned at levels based on financial need; except
that, the rates are not to exceed the maximum rates of reimbursement
established by the Secretary under Sec. 210.4(b) and are to permit
reimbursement for the total number of lunches in the State from funds
available under Sec. 210.4. Within each school food authority, the
State agency shall assign the same rate of reimbursement from general
cash assistance funds for all lunches served to children under the
[[Page 16]]
Program. Assigned rates of reimbursement may be changed at any time by
the State agency, provided that notice of any change is given to the
school food authority. The total general and special cash assistance
reimbursement paid to any school food authority for lunches served to
children during the school year are not to exceed the sum of the
products obtained by multiplying the total reported number of lunches,
by type, served to eligible children during the school year by the
applicable maximum per lunch reimbursements prescribed for the school
year for each type of lunch.
(c) Reimbursement limitations. To be entitled to reimbursement under
this part, each school food authority shall ensure that Claims for
Reimbursement are limited to the number of free, reduced price and paid
lunches and meal supplements that are served to children eligible for
free, reduced price and paid lunches and meal supplements, respectively,
for each day of operation.
(1) Lunch count system. To ensure that the Claim for Reimbursement
accurately reflects the number of lunches and meal supplements served to
eligible children, the school food authority shall, at a minimum:
(i) Correctly approve each child's eligibility for free and reduced
price lunches and meal supplements based on the requirements prescribed
under 7 CFR part 245;
(ii) Maintain a system to issue benefits and to update the
eligibility of children approved for free or reduced price lunches and
meal supplements. The system shall:
(A) Accurately reflect eligibility status as well as changes in
eligibility made after the initial approval process due to verification
findings, transfers, reported changes in income or household size, etc.;
and
(B) Make the appropriate changes in eligibility after the initial
approval process on a timely basis so that the mechanism the school food
authority uses to identify currently eligible children provides a
current and accurate representation of eligible children. Changes in
eligibility which result in increased benefit levels shall be made as
soon as possible but no later than 3 operating days of the date the
school food authority makes the final decision on a child's eligibility
status. Changes in eligibility which result in decreased benefit levels
shall be made as soon as possible but no later than 10 operating days of
the date the school food authority makes the final decision on the
child's eligibility status.
(iii) Base Claims for Reimbursement on lunch counts, taken daily at
the point of service, which correctly identify the number of free,
reduced price and paid lunches served to eligible children;
(iv) Correctly record, consolidate and report those lunch and
supplement counts on the Claim for Reimbursement; and
(v) Ensure that Claims for Reimbursement do not request payment for
any excess lunches produced, as prohibited in Sec. 210.10(a)(2), or
non-Program lunches (i.e., a la carte or adult lunches) or for more than
one meal supplement per child per day.
(2) Point of service alternatives. (i) State agencies may authorize
alternatives to the point of service lunch counts provided that such
alternatives result in accurate, reliable counts of the number of free,
reduced price and paid lunches served, respectively, for each serving
day. State agencies are encouraged to issue guidance which clearly
identifies acceptable point of service alternatives and instructions for
proper implementation. School food authorities may select one of the
State agency approved alternatives without prior approval.
(ii) In addition, on a case-by-case basis, State agencies may
authorize school food authorities to use other alternatives to the point
of service lunch count; provided that such alternatives result in an
accurate and reliable lunch count system. Any request to use an
alternative lunch counting method which has not been previously
authorized under paragraph (2)(i) is to be submitted in writing to the
State agency for approval. Such request shall provide detail sufficient
for the State agency to assess whether the proposed alternative would
provide an accurate and reliable count of the number of lunches, by
type, served each day to eligible children. The details of each approved
alternative shall be maintained
[[Page 17]]
on file at the State agency for review by FNS.
(d) The State agency shall reimburse the school food authority for
meal supplements served in eligible schools (as defined in Sec.
210.10(n)(1)) operating afterschool care programs under the NSLP in
accordance with the rates established in Sec. 210.4(b).
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12581, Mar. 28, 1989; 56
FR 32939, July 17, 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, June
13, 1995; 65 FR 26912, May 9, 2000]
Sec. 210.8 Claims for reimbursement.
(a) Internal controls. The school food authority shall establish
internal controls which ensure the accuracy of lunch counts prior to the
submission of the monthly Claim for Reimbursement. At a minimum, these
internal controls shall include: an on-site review of the lunch counting
and claiming system employed by each school within the jurisdiction of
the school food authority; comparisons of daily free, reduced price and
paid lunch counts against data which will assist in the identification
of lunch counts in excess of the number of free, reduced price and paid
lunches served each day to children eligible for such lunches; and a
system for following up on those lunch counts which suggest the
likelihood of lunch counting problems.
(1) On-site reviews. Every school year, each school food authority
with more than one school shall perform no less than one on-site review
of the lunch counting and claiming system employed by each school under
its jurisdiction. The on-site review shall take place prior to February
1 of each school year. Further, if the review discloses problems with a
school's meal counting or claiming procedures, the school food authority
shall: ensure that the school implements corrective action; and, within
45 days of the review, conducts a follow-up on-site review to determine
that the corrective action resolved the problems. Each on-site review
shall ensure that the school's claim is based on the counting system
authorized by the State agency under Sec. 210.7(c) of this part and
that the counting system, as implemented, yields the actual number of
reimbursable free, reduced price and paid lunches, respectively, served
for each day of operation.
(2) School food authority claims review process. Prior to the
submission of a monthly Claim for Reimbursement, each school food
authority shall review the lunch count data for each school under its
jurisdiction to ensure the accuracy of the monthly Claim for
Reimbursement. The objective of this review is to ensure that monthly
claims include only the number of free, reduced price and paid lunches
served on any day of operation to children currently eligible for such
lunches.
(i) Any school food authority that was found by its most recent
administrative review conducted in accordance with Sec. 210.18, to have
no meal counting and claiming violations may:
(A) Develop internal control procedures that ensure accurate meal
counts. The school food authority shall submit any internal controls
developed in accordance with this paragraph to the State agency for
approval and, in the absence of specific disapproval from the State
agency, shall implement such internal controls. The State agency shall
establish procedures to promptly notify school food authorities of any
modifications needed to their proposed internal controls or of denial of
unacceptable submissions. If the State agency disapproves the proposed
internal controls of any school food authority, it reserves the right to
require the school food authority to comply with the provisions of
paragraph (a)(3) of this section; or
(B) Comply with the requirements of paragraph (a)(3) of this
section.
(ii) Any school food authority that was identified in the most
recent administrative review conducted in accordance with Sec. 210.18,
or in any other oversight activity, as having meal counting and claiming
violations shall comply with the requirements in paragraph (a)(3) of
this section.
(3) Edit checks. (i) The following procedure shall be followed for
school food authorities identified in paragraph (a)(2)(ii) of this
section, by other school food authorities at State agency option, or, at
their own option, by school food authorities identified in paragraph
(a)(2)(i) of this section: the school food authority shall compare each
school's
[[Page 18]]
daily counts of free, reduced price and paid lunches against the product
of the number of children in that school currently eligible for free,
reduced price and paid lunches, respectively, times an attendance
factor.
(ii) School food authorities that are identified in subsequent
administrative reviews conducted in accordance with Sec. 210.18 as not
having meal counting and claiming violations and that are correctly
complying with the procedures in paragraph (a)(3)(i) of this section
have the option of developing internal controls in accordance with
paragraph (a)(2)(i) of this section.
(4) Follow-up activity. The school food authority shall promptly
follow-up through phone contact, on-site visits or other means when the
internal controls used by schools in accordance with paragraph (a)(2)(i)
of this section or the claims review process used by schools in
accordance with paragraphs (a)(2)(ii) and (a)(3) of this section suggest
the likelihood of lunch count problems. When problems or errors are
identified, the lunch counts shall be corrected prior to submission of
the monthly Claim for Reimbursement. Improvements to the lunch count
system shall also be made to ensure that the lunch counting system
consistently results in lunch counts of the actual number of
reimbursable free, reduced price and paid lunches served for each day of
operation.
(5) Recordkeeping. School food authorities shall maintain on file,
each month's Claim for Reimbursement and all data used in the claims
review process, by school. Records shall be retained as specified in
Sec. 210.23(c) of this part. School food authorities shall make this
information available to the Department and the State agency upon
request.
(b) Monthly claims. To be entitled to reimbursement under this part,
each school food authority shall submit to the State agency, a monthly
Claim for Reimbursement, as described in paragraph (c) of this section.
(1) Submission timeframes. A final Claim for Reimbursement shall be
postmarked or submitted to the State agency not later than 60 days
following the last day of the full month covered by the claim. State
agencies may establish shorter deadlines at their discretion. Claims not
postmarked and/or submitted within 60 days shall not be paid with
Program funds unless otherwise authorized by FNS.
(2) State agency claims review process. The State agency shall
review each school food authority's Claim for Reimbursement, on a
monthly basis, in an effort to ensure that monthly claims are limited to
the number of free and reduced price lunches served, by type, to
eligible children.
(i) The State agency shall, at a minimum, compare the number of free
and reduced price lunches claimed to the number of children approved for
free and reduced price lunches enrolled in the school food authority for
the month of October times the days of operation times the attendance
factor employed by the school food authority in accordance with
paragraph (a)(3) of this section or the internal controls used by
schools in accordance with paragraph (a)(2)(i) of this section. At its
discretion, the State agency may conduct this comparison against data
which reflects the number of children approved for free and reduced
price lunches for a more current month(s) as collected pursuant to
paragraph (c)(2) of this section.
(ii) In lieu of conducting the claims review specified in paragraph
(b)(2)(i) of this section, the State agency may conduct alternative
analyses for those Claims for Reimbursement submitted by residential
child care institutions. Such alternatives analyses shall meet the
objective of ensuring that the monthly Claims for Reimbursement are
limited to the numbers of free and reduced price lunches served, by
type, to eligible children.
(3) Follow-up activity. The State agency shall promptly follow-up
through phone contact, on-site visits, or other means when the claims
review process suggests the likelihood of lunch count problems.
(4) Corrective action. The State agency shall promptly take
corrective action with respect to any Claim for Reimbursement which
includes more than the number of lunches served, by type, to eligible
children. In taking corrective action, State agencies may make
adjustments on claims filed within the
[[Page 19]]
60-day deadline if such adjustments are completed within 90 days of the
last day of the claim month and are reflected in the final Report of
School Program Operations (FNS-10) for the claim month required under
Sec. 210.5(d) of this part. Upward adjustments in Program funds claimed
which are not reflected in the final FNS-10 for the claim month shall
not be made unless authorized by FNS. Except that, upward adjustments
for the current and prior fiscal years resulting from any review or
audit may be made, at the discretion of the State agency. Downward
adjustments in amounts claimed shall always be made, without FNS
authorization, regardless of when it is determined that such adjustments
are necessary.
(c) Content of claim. The Claim for Reimbursement shall include data
in sufficient detail to justify the reimbursement claimed and to enable
the State agency to provide the Report of School Program Operations
required under Sec. 210.5(d) of this part. Such data shall include, at
a minimum, the number of free, reduced price and paid lunches and meal
supplements served to eligible children. The claim shall be signed by a
school food authority official.
(1) Consolidated claim. The State agency may authorize a school food
authority to submit a consolidated Claim for Reimbursement for all
schools under its jurisdiction, provided that, the data on each school's
operations required in this section are maintained on file at the local
office of the school food authority and the claim separates consolidated
data for commodity schools from data for other schools. Unless otherwise
approved by FNS, the Claim for Reimbursement for any month shall include
only lunches and meal supplements served in that month except if the
first or last month of Program operations for any school year contains
10 operating days or less, such month may be combined with the Claim for
Reimbursement for the appropriate adjacent month. However, Claims for
Reimbursement may not combine operations occurring in two fiscal years.
If a single State agency administers any combination of the Child
Nutrition Programs, a school food authority shall be able to use a
common claim form with respect to claims for reimbursement for meals
served under those programs.
(2) October data. For the month of October, the State agency shall
also obtain, either through the Claim for Reimbursement or other means,
the total number of children approved for free lunches and meal
supplements, the total number of children approved for reduced price
lunches and meal supplements, and the total number of children enrolled
in the school food authority as of the last day of operation in October.
The school food authority shall submit this data to the State agency no
later than December 31 of each year. State agencies may establish
shorter deadlines at their discretion. In addition, the State agency may
require school food authorities to provide this data for a more current
month if for use in the State agency claims review process under
paragraph (c)(2) of this section.
(d) Advance funds. The State agency may advance funds available for
the Program to a school food authority in an amount equal to the amount
of reimbursement estimated to be needed for one month's operation.
Following the receipt of claims, the State agency shall make
adjustments, as necessary, to ensure that the total amount of payments
received by the school food authority for the fiscal year does not
exceed an amount equal to the number of lunches and meal supplements by
reimbursement type served to children times the respective payment rates
assigned by the State in accordance with Sec. 210.7(b). The State
agency shall recover advances of funds to any school food authority
failing to comply with the 60-day claim submission requirements in
paragraph (b) of this section.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12581, Mar. 28, 1989; 56
FR 32940, July 17, 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, June
13, 1995; 64 FR 50740, Sept. 20, 1999]
Subpart C_Requirements for School Food Authority Participation
Sec. 210.9 Agreement with State agency.
(a) Application. An official of a school food authority shall make
written application to the State agency for any
[[Page 20]]
school in which it desires to operate the Program. Applications shall
provide the State agency with sufficient information to determine
eligibility. The school food authority shall also submit for approval a
Free and Reduced Price Policy Statement in accordance with part 245 of
this chapter.
(b) Agreement. Each school food authority approved to participate in
the program shall enter into a written agreement with the State agency
that may be amended as necessary. Nothing in the preceding sentence
shall be construed to limit the ability of the State agency to suspend
or terminate the agreement in accordance with Sec. 210.25. If a single
State agency administers any combination of the Child Nutrition
Programs, that State agency shall provide each school food authority
with a single agreement with respect to the operation of those programs.
The agreement shall contain a statement to the effect that the ``School
Food Authority and participating schools under its jurisdiction, shall
comply with all provisions of 7 CFR parts 210 and 245.'' This agreement
shall provide that each school food authority shall, with respect to
participating schools under its jurisdiction:
(1) Maintain a nonprofit school food service and observe the
limitations on the use of nonprofit school food service revenues set
forth in Sec. 210.14(a) and the limitations on any competitive school
food service as set forth in Sec. 210.11(b);
(2) Limit its net cash resources to an amount that does not exceed 3
months average expenditures for its nonprofit school food service or
such other amount as may be approved in accordance with Sec. 210.19(a);
(3) Maintain a financial management system as prescribed under Sec.
210.14(c);
(4) Comply with the requirements of the Department's regulations
regarding financial management (7 CFR part 3015 and 7 CFR part 3016, or
7 CFR part 3019, as applicable);
(5) Serve lunches, during the lunch period, which meet the minimum
requirements prescribed in Sec. 210.10;
(6) Price the lunch as a unit;
(7) Serve lunches free or at a reduced price to all children who are
determined by the local educational agency to be eligible for such meals
under 7 CFR part 245;
(8) Claim reimbursement at the assigned rates only for reimbursable
free, reduced price and paid lunches served to eligible children in
accordance with 7 CFR part 210. Agree that the school food authority
official signing the claim shall be responsible for reviewing and
analyzing meal counts to ensure accuracy as specified in Sec. 210.8
governing claims for reimbursement. Acknowledge that failure to submit
accurate claims will result in the recovery of an overclaim and may
result in the withholding of payments, suspension or termination of the
program as specified in Sec. 210.25. Acknowledge that if failure to
submit accurate claims reflects embezzlement, willful misapplication of
funds, theft, or fraudulent activity, the penalties specified in Sec.
210.26 shall apply;
(9) Count the number of free, reduced price and paid reimbursable
meals served to eligible children at the point of service, or through
another counting system if approved by the State agency;
(10) Submit Claims for Reimbursement in accordance with Sec. 210.8;
(11) Comply with the requirements of the Department's regulations
regarding nondiscrimination (7 CFR parts 15, 15a, 15b);
(12) Make no discrimination against any child because of his or her
eligibility for free or reduced price meals in accordance with the
approved Free and Reduced Price Policy Statement;
(13) Enter into an agreement to receive donated foods as required by
7 CFR part 250;
(14) Maintain, in the storage, preparation and service of food,
proper sanitation and health standards in conformance with all
applicable State and local laws and regulations, and comply with the
food safety inspection requirement of Sec. 210.13(b);
(15) Accept and use, in as large quantities as may be efficiently
utilized in its nonprofit school food service, such foods as may be
offered as a donation by the Department;
(16) Maintain necessary facilities for storing, preparing and
serving food;
(17) Upon request, make all accounts and records pertaining to its
school
[[Page 21]]
food service available to the State agency and to FNS, for audit or
review, at a reasonable time and place. Such records shall be retained
for a period of 3 years after the date of the final Claim for
Reimbursement for the fiscal year to which they pertain, except that if
audit findings have not been resolved, the records shall be retained
beyond the 3 year period as long as required for resolution of the
issues raised by the audit;
(18) Maintain files of currently approved and denied free and
reduced price applications, respectively, and the names of children
approved for free lunches based on documentation certifying that the
child is included in a household approved to receive benefits under the
Food Stamp Program, Food Distribution Program for Households on Indian
Reservations (FDPIR) or Temporary Assistance for Needy Families (TANF).
If the applications and/or documentation are maintained at the school
food authority level, they shall be readily retrievable by school;
(19) Retain the individual applications for free and reduced price
lunches and meal supplements submitted by families for a period of 3
years after the end of the fiscal year to which they pertain or as
otherwise specified under paragraph (b)(17) of this section.
(20) No later than March 1, 1997, and no later than December 31 of
each year thereafter, provide the State agency with a list of all
elementary schools under its jurisdiction in which 50 percent or more of
enrolled children have been determined eligible for free or reduced
price meals as of the last operating day the preceding October. The
State agency may designate a month other than October for the collection
of this information, in which case the list must be provided to the
State agency within 60 calendar days following the end of the month
designated by the State agency. In addition, each school food authority
shall provide, when available for the schools under its jurisdiction,
and upon the request of a sponsoring organization of day care homes of
the Child and Adult Care Food Program, information on the boundaries of
the attendance areas for the elementary schools identified as having 50
percent or more of enrolled children certified eligible for free or
reduced price meals.
(c) Afterschool care requirements. Those school food authorities
with eligible schools (as defined in Sec. 210.10(n)(1)) that elect to
serve meal supplements during afterschool care programs, shall agree to:
(1) Serve meal supplements which meet the minimum requirements
prescribed in Sec. 210.10;
(2) Price the meal supplement as a unit;
(3) Serve meal supplements free or at a reduced price to all
children who are determined by the school food authority to be eligible
for free or reduced price school meals under 7 CFR part 245;
(4) If charging for meals, the charge for a reduced price meal
supplement shall not exceed 15 cents;
(5) Claim reimbursement at the assigned rates only for meal
supplements served in accordance with the agreement;
(6) Claim reimbursement for no more than one meal supplement per
child per day;
(7) Review each afterschool care program two times a year; the first
review shall be made during the first four weeks that the school is in
operation each school year, except that an afterschool care program
operating year round shall be reviewed during the first four weeks of
its initial year of operation, once more during its first year of
operation, and twice each school year thereafter; and
(8) Comply with all requirements of this part, except that, claims
for reimbursement need not be based on ``point of service'' meal
supplement counts (as required by Sec. 210.9(b)(9)).
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12581, Mar. 28, 1989; 56
FR 32941, July 17, 1991; 58 FR 42488, Aug. 10, 1993; 60 FR 31208, June
13, 1995; 62 FR 901, Jan. 7, 1997; 63 FR 9104, Feb. 24, 1998; 64 FR
50740, Sept. 20, 1999; 64 FR 72471, Dec. 28, 1999; 65 FR 26912, May 9,
2000; 70 FR 34630, June 15, 2005; 71 FR 39516, July 13, 2006; 72 FR
63791, Nov. 13, 2007]
[[Page 22]]
Sec. 210.10 Nutrition standards and menu planning approaches for lunches and requirements for afterschool snacks.
(a) What are the general requirements?--(1) General nutrition
requirements. Schools must provide nutritious and well-balanced meals to
all the children they serve.
(i) Requirements for lunch. For children age 2 or older, schools
must offer lunches that meet, at a minimum, the nutrition standards in
paragraph (b) of this section. Compliance with the nutrition standards
and the appropriate nutrient and calorie levels is determined by
averaging lunches planned to be offered over a school week. Under any
menu planning approach, schools must plan and produce at least enough
food to meet the appropriate calorie and nutrient levels for the ages/
grades of the children in the school (see paragraphs (c), (d), (i)(1) or
(l) of this section, depending on the menu planning approach used).
Also, if schools use one of the food-based menu planning approaches,
they must plan and produce at least enough food to offer each child the
minimum quantities under the meal pattern (see paragraph (k) of this
section). Schools offering lunches to infants must meet the meal pattern
requirements in paragraph (o) of this section.
(ii) Requirements for afterschool snacks. Schools offering
afterschool snacks in afterschool care programs must meet the meal
pattern requirements in paragraph (n) of this section. Schools must plan
and produce enough food to offer each child the minimum quantities under
the meal pattern in paragraph (n) of this section. The component
requirements for meal supplements served under the Child and Adult Care
Food Program authorized under part 226 of this chapter also apply to
afterschool snacks served in accordance with paragraph (n) of this
section.
(2) Unit pricing. Schools must price each meal as a unit. Schools
need to consider participation trends in an effort to provide one
reimbursable lunch and, if applicable, one reimbursable afterschool
snack for each child every day. If there are leftover meals, schools may
offer them to the students but cannot get reimbursement for them.
(3) Production and menu records. Schools must keep production and
menu records for the meals they produce. These records must show how the
meals contribute to the required food components, food items or menu
items every day. In addition, for lunches, these records must show how
the lunches contribute to the nutrition standards in paragraph (b) of
this section and the appropriate calorie and nutrient levels for the
ages/grades of the children in the school (see paragraphs (c), (d), or
(i)(1) or (l) of this section, depending on the menu planning approach
used) over the school week. If applicable, schools or school food
authorities must maintain nutritional analysis records to demonstrate
that lunches meet, when averaged over each school week:
(i) The nutrition standards provided in paragraph (b) of this
section; and
(ii) The nutrient and calorie levels for children for each age or
grade group in accordance with paragraphs (c) or (i)(1) of this section
or developed under paragraph (l) of this section.
(b) What are the specific nutrition standards for lunches? Children
age 2 and above must be offered lunches that meet the following
nutrition standards for their age/grade group:
(1) Provision of one-third of the Recommended Dietary Allowances
(RDAs) for protein, calcium, iron, vitamin A and vitamin C in the
appropriate levels for the ages/grades (see paragraphs (c), (d), (i)(1)
or (l) of this section, depending on the menu planning approach used);
(2) Provision of the lunchtime energy allowances (calories) in the
appropriate levels (see paragraphs (c), (d),(i)(1) or (l) of this
section, depending on the menu planning approach used);
(3) These applicable recommendations from the 1995 Dietary
Guidelines for Americans:
(i) Eat a variety of foods;
(ii) Limit total fat to 30 percent of total calories;
(iii) Limit saturated fat to less than 10 percent of total calories;
(iv) Choose a diet low in cholesterol;
(v) Choose a diet with plenty of grain products, vegetables, and
fruits; and
(vi) Choose a diet moderate in salt and sodium.
[[Page 23]]
(4) These measures of compliance with the applicable recommendations
of the 1995 Dietary Guidelines for Americans:
(i) Limit the percent of calories from total fat to 30 percent of
the actual number of calories offered;
(ii) Limit the percent of calories from saturated fat to less than
10 percent of the actual number of calories offered;
(iii) Reduce sodium and cholesterol levels; and
(iv) Increase the level of dietary fiber.
(5) School food authorities have several ways to plan menus. The
minimum levels of nutrients and calories that lunches must offer depends
on the menu planning approach used and the ages/grades served. The menu
planning approaches are:
(i) Nutrient standard menu planning (see paragraphs (c) and (i) of
this section);
(ii) Assisted nutrient standard menu planning (see paragraphs (c)
and (j) of this section);
(iii) Traditional food-based menu planning (see paragraphs (d)(1)
and (k) of this section);
(iv) Enhanced food-based menu planning (see paragraphs (d)(2) and
(k) of this section); or
(v) Alternate menu planning (see paragraph (l) of this section).
(c) What are the levels for nutrients and calories for lunches
planned under the nutrient standard or assisted nutrient standard menu
planning approaches?--(1) Required levels. The required levels are:
[GRAPHIC] [TIFF OMITTED] TR09MY00.000
(2) Optional levels. Optional levels are:
[[Page 24]]
[GRAPHIC] [TIFF OMITTED] TR09MY00.001
(3) Customized levels. Schools may also develop a set of nutrient
and calorie levels for a school week. These levels are customized for
the age groups of the children in the particular school or school food
authority.
(d) What are the nutrient and calorie levels for lunches planned
under the food-based menu planning approaches?--(1) Traditional
approach. For the traditional food-based menu planning approach, the
required levels are:
[GRAPHIC] [TIFF OMITTED] TN17MY00.000
(2) Enhanced approach. For the enhanced food-based menu planning
approach, the required levels are:
[[Page 25]]
[GRAPHIC] [TIFF OMITTED] TR09MY00.003
(e) Must schools offer choices at lunch? FNS encourages schools to
offer children a selection of foods and menu items at lunch. Choices
provide variety and encourage consumption. Schools may offer choices of
reimbursable lunches or foods within a reimbursable lunch. Children who
are eligible for free or reduced price lunches must be allowed to take
any reimbursable lunch or any choices offered as part of a reimbursable
lunch. Schools may establish different unit prices for each lunch
offered provided that the benefits made available to children eligible
for free or reduced price lunches are not affected.
(f) What are the requirements for lunch periods?--(1) Timing.
Schools must offer lunches meeting the requirements of this section
during the period the school has designated as the lunch period. Schools
must offer lunches between 10:00 a.m. and 2:00 p.m. Schools may request
an exemption from these times only from FNS.
(2) Lunch periods for young children. With State agency approval,
schools are encouraged to serve children ages one through five over two
service periods. Schools may divide the quantities and/or the menu
items, foods, or food items offered each time any way they wish.
(3) Adequate lunch periods. FNS encourages schools to provide
sufficient lunch periods that are long enough to give all students
enough time to be served and to eat their lunches.
(g) Exceptions and variations allowed in reimbursable meals--(1)
Exceptions for disability reasons. Schools must make substitutions in
lunches and afterschool snacks for students who are considered to have a
disability under 7 CFR 15b.3 and whose disability restricts their diet.
Substitutions must be made on a case by case basis only when supported
by a written statement of the need for substitutions that includes
recommended alternate foods, unless otherwise exempted by FNS. Such
statement must be signed by a licensed physician.
(2) Exceptions for non-disability reasons. Schools may make
substitutions for students without disabilities who cannot consume the
regular lunch or afterschool snack because of medical or other special
dietary needs. Substitutions must be made on a case by case basis only
when supported by a written statement of the need for substitutions that
includes recommended alternate foods, unless otherwise exempted by FNS.
Except with respect to substitutions for fluid milk, such a statement
must be signed by a recognized medical authority.
(i) Milk substitutions for non-disability reasons. Schools may make
substitutions for fluid milk for non-disabled students who cannot
consume fluid milk due to medical or special dietary
[[Page 26]]
needs. A school that selects this option may offer the nondairy
beverage(s) of its choice, provided the beverage(s) meets the
nutritional standards established under paragraph (m) of this section.
Expenses incurred when providing substitutions for fluid milk that
exceed program reimbursements must be paid by the school food authority.
(ii) Requisites for milk substitutions. (A) A school food authority
must inform the State agency if any of its schools choose to offer fluid
milk substitutes other than for students with disabilities; and
(B) A medical authority or the student's parent or legal guardian
must submit a written request for a fluid milk substitute identifying
the medical or other special dietary need that restricts the student's
diet.
(iii) Substitution approval. The approval for fluid milk
substitution must remain in effect until the medical authority or the
student's parent or legal guardian revokes such request in writing, or
until such time as the school changes its substitution policy for non-
disabled students.
(3) Variations for ethnic, religious, or economic reasons. Schools
should consider ethnic and religious preferences when planning and
preparing meals. Variations on an experimental or continuing basis in
the food components for the food-based menu planning approaches in
paragraphs (k) or (n) of this section may be allowed by FNS. Any
variations must be nutritionally sound and needed to meet ethnic,
religious, or economic needs.
(4) Exceptions for natural disasters. If there is a natural disaster
or other catastrophe, FNS may temporarily allow schools to serve meals
for reimbursement that do not meet the requirements in this section.
(h) What must schools do about nutrition disclosure? To the extent
that school food authorities identify foods in a menu, or on the serving
line or through other available means of communicating with program
participants, school food authorities must identify products or dishes
containing more than 30 parts fully hydrated alternate protein products
(as specified in appendix A of this part) to less than 70 parts beef,
pork, poultry or seafood on an uncooked basis, in a manner which does
not characterize the product or dish solely as beef, pork, poultry or
seafood. Additionally, FNS encourages schools to inform the students,
parents, and the public about efforts they are making to meet the
nutrition standards (see paragraph (b) of this section) for school
lunches.
(i) What are the requirements for lunches under the nutrient
standard menu planning approach?--(1) Nutrient levels--(i) Adjusting
nutrient levels for young children. Schools with children who are age 2
must at least meet the nutrition standards in paragraph (b) of this
section and the preschool nutrient and calorie levels in paragraph
(c)(1) of this section over a school week. Schools may also use the
preschool nutrient and calorie levels in paragraph (c)(2) of this
section or may calculate nutrient and calorie levels for two year olds.
FNS has a method for calculating these levels in guidance materials for
menu planning.
(ii) Minimum levels for nutrients. Lunches must at least offer the
nutrient and calorie levels for the required grade groups in the table
in paragraph (c)(1) of this section. Schools may also offer lunches
meeting the nutrient and calorie levels for the age groups in paragraph
(c)(2) of this section. If only one grade or age group is outside either
of these established levels, schools may follow the levels for the
majority of the children. Schools may also customize the nutrient and
calorie levels for the children they serve. FNS has a method for
calculating these levels in guidance materials for menu planning.
(2) Reimbursable lunches--(i) Contents of a reimbursable lunch. A
reimbursable lunch must include at least three menu items. One of those
menu items must be an entree, and one must be fluid milk as a beverage.
An entree is a combination of foods or is a single food item offered as
the main course. All menu items or foods offered in a reimbursable lunch
contribute to the nutrition standards in paragraph (b) of this section
and to the levels of nutrients and calories that must be met in
paragraphs (c) or (i)(1) of this section. Unless offered as part of a
menu item in a reimbursable lunch, foods of minimal nutritional value
(see appendix B to
[[Page 27]]
part 210) are not included in the nutrient analysis. Reimbursable
lunches planned under the nutrient standard menu planning approach must
meet the nutrition standards in paragraph (b) of this section and the
appropriate nutrient and calorie levels in either paragraph (c) or
paragraph (i)(1) of this section.
(ii) Offer versus serve. Schools must offer at least three menu
items for lunches. Senior high (as defined by the State educational
agency) school students must select at least two menu items and are
allowed to decline a maximum of two menu items. The student must always
take the entree. The price of a reimbursable lunch does not change if
the student does not take a menu item or requests smaller portions. At
the discretion of the school food authority, students below the senior
high level may also participate in offer versus serve.
(3) Doing the analysis. Schools using nutrient standard menu
planning must conduct the analysis on all menu items and foods offered
in a reimbursable lunch. The analysis is conducted over a school week.
Unless offered as part of a menu item in a reimbursable lunch, foods of
minimal nutritional value (see appendix B to part 210) are not included
in the nutrient analysis.
(4) Software elements--(i) The Child Nutrition Database. The
nutrient analysis is based on the Child Nutrition Database. This
database is part of the software used to do a nutrient analysis.
Software companies or others developing systems for schools may contact
FNS for more information about the database.
(ii) Software evaluation. FNS or an FNS designee evaluates any
nutrient analysis software before it may be used in schools. FNS or its
designee determines if the software, as submitted, meets the minimum
requirements. The approval of software does not mean that FNS or USDA
endorses it. The software must be able to do all functions after the
basic data is entered. The required functions include weighted averages
and the optional combined analysis of the lunch and breakfast programs.
(5) Nutrient analysis procedures--(i) Weighted averages. Schools
must include all menu items and foods offered in reimbursable lunches in
the nutrient analysis. Menu items and foods are included based on the
portion sizes and projected serving amounts. They are also weighted
based on their proportionate contribution to the lunches offered. This
means that menu items or foods more frequently offered are weighted more
heavily than those not offered as frequently. Schools calculate
weighting as indicated by FNS guidance and by the guidance provided by
the software. Through September 30, 2009, schools are not required to
conduct a weighted analysis.
(ii) Analyzed nutrients. The analysis includes all menu items and
foods offered over a school week. The analysis must determine the levels
of: Calories, protein, vitamin A, vitamin C, iron, calcium, total fat,
saturated fat, sodium, cholesterol and dietary fiber.
(iii) Combining the analysis of the lunch and breakfast programs. At
their option, schools may combine the analysis of lunches offered under
this part and breakfasts offered under part 220 of this Chapter. The
analysis is done proportionately to the levels of participation in each
program based on FNS guidance.
(6) Comparing the results of the nutrient analysis. Once the
procedures in paragraph (i)(5) of this section are completed, schools
must compare the results of the analysis to the appropriate nutrient and
calorie levels, by age/grade groups, in paragraph (c) of this section or
those developed under paragraph (i)(1) of this section. This comparison
determines the school week's average. Schools must also make comparisons
to the nutrition standards in paragraph (b) of this section to determine
how well they are meeting the nutrition standards over the school week.
(7) Adjustments to the menus. Once schools know the results of the
nutrient analysis based on the procedures in paragraphs (i)(5) and
(i)(6) of this section, they must adjust future menu cycles to reflect
production and how often the menu items and foods are offered. Schools
may need to reanalyze menus when the students' selections change and,
consequently, production levels change. Schools may need to
[[Page 28]]
change the menu items and foods offered given the students' selections
and may need to modify the recipes and other specifications to make sure
that the nutrition standards in paragraph (b) and either paragraphs (c)
or (i)(1) of this section are met.
(8) Standardized recipes. If a school follows the nutrient standard
menu planning approach, it must develop and follow standardized recipes.
A standardized recipe is a recipe that was tested to provide an
established yield and quantity using the same ingredients for both
measurement and preparation methods. Any standardized recipes developed
by USDA/FNS are in the Child Nutrition Database. If a school has its own
recipes, they must be standardized and analyzed to determine the levels
of calories, nutrients, and dietary components listed in paragraph
(i)(5)(ii) of this section. Schools must add any local recipes to their
local database as outlined in FNS guidance.
(9) Processed foods. The Child Nutrition Database includes a number
of processed foods. Schools may use purchased processed foods and menu
items that are not in the Child Nutrition Database. Schools or the State
agency must add any locally purchased processed foods and menu items to
their local database as outlined in FNS guidance. Schools or the State
agency must obtain the levels of calories, nutrients, and dietary
components listed in paragraph (i)(5)(ii) of this section.
(10) Menu substitutions. Schools may need to substitute foods or
menu items in a menu that was already analyzed. If the substitution(s)
occurs more than two weeks before the planned menu is served, the school
must reanalyze the revised menu. If the substitution(s) occurs two weeks
or less before the planned menu is served, the school does not need to
do a reanalysis. However, schools should always try to substitute
similar foods.
(11) Meeting the nutrition standards. The school's analysis shows
whether their menus are meeting the nutrition standards in paragraph (b)
of this section and the appropriate levels of nutrients and calories in
paragraph (c) of this section or customized levels developed under
paragraph (i)(1) of this section. If the analysis shows that the menu(s)
are not meeting these standards, the school needs to take action to make
sure that the lunches meet the nutrition standards and the calorie,
nutrient, and dietary component levels. Actions may include technical
assistance and training and may be taken by the State agency, the school
food authority or by the school as needed.
(12) Other Child Nutrition Programs and nutrient standard menu
planning. School food authorities that operate the Summer Food Service
Program (part 225 of this chapter) and/or the Child and Adult Care Food
Program (part 226 of this chapter) may, with State agency approval,
prepare lunches for these programs using the nutrient standard menu
planning approach for children age two and over. FNS has guidance on the
levels of nutrients and calories for adult lunches under the Child and
Adult Care Food Program. However, afterschool snacks continue to use the
appropriate program's meal pattern.
(j) What are the requirements for lunches under the assisted
nutrient standard menu planning approach?--(1) Definition of assisted
nutrient standard menu planning. Some school food authorities may not be
able to do all of the procedures necessary for nutrient standard menu
planning. The assisted nutrient standard menu planning approach provides
schools with menu cycles developed and analyzed by other sources. These
sources include the State agency, other school food authorities,
consultants, or food service management companies.
(2) Elements of assisted nutrient standard menu planning. School
food authorities using menu cycles developed under assisted nutrient
standard menu planning must follow the procedures in paragraphs (i)(1)
through (i)(10) of this section. The menu cycles must also incorporate
local food preferences and accommodate local food service operations.
The menus cycles must meet the nutrition standards in paragraph (b) of
this section and meet the nutrient and calorie levels for nutrient
standard menu planning in paragraph (c) or paragraph (i)(1) of this
section. The supplier of the assisted nutrient standard menu planning
approach must also develop and provide recipes, food
[[Page 29]]
product specifications, and preparation techniques. All of these
components support the nutrient analysis results of the menus cycles
used by the receiving school food authorities.
(3) State agency approval. Prior to its use, the State agency must
approve the initial menu cycle, recipes and other specifications of the
assisted nutrient standard menu planning approach. The State agency
needs to ensure that all the steps required for nutrient analysis were
followed. School food authorities may also ask the State agency for
assistance with implementation of their assisted nutrient standard menu
planning approach.
(4) Required adjustments. After the initial service of the menu
cycle developed under the assisted nutrient standard menu planning
approach, the nutrient analysis must be reassessed and appropriate
adjustments made as discussed in paragraph (i)(7) of this section.
(5) Final responsibility for meeting the nutrition standards. The
school food authority using the assisted nutrient standard menu planning
approach retains responsibility for meeting the nutrition standards in
paragraph (b) of this section and the calorie and nutrient levels in
paragraph (c) or paragraph (i)(1) of this section.
(6) Adjustments to the menus. If the nutrient analysis shows that
the lunches offered are not meeting the nutrition standards in paragraph
(b) of this section and the calorie and nutrient levels in paragraph (c)
or paragraph (i)(1) of this section, the State agency, school food
authority or school must take action to make sure the lunches offered
meet these requirements. Actions needed include technical assistance and
training.
(7) Other Child Nutrition Programs and assisted nutrient standard
menu planning. School food authorities that operate the Summer Food
Service Program (part 225 of this chapter) and/or the Child and Adult
Care Food Program (part 226 of this chapter) may, with State agency
approval, prepare lunches for these programs using the assisted nutrient
standard menu planning approach for children age two and over. FNS has
guidance on the levels of nutrients and calories for adult lunches under
the Child and Adult Care Food Program. However, afterschool snacks
continue to use the appropriate program's meal pattern.
(k) What are the requirements for lunches under the food-based menu
planning approaches? There are two menu planning approaches based on
meal patterns, not nutrient analysis. These approaches are the
traditional food-based menu planning approach and the enhanced food-
based menu planning approach. Schools using one of these approaches
offer food components in at least the minimum quantities required for
the various grade groups.
(1) Quantities for the traditional food-based menu planning
approach--(i) Minimum quantities. At a minimum, schools must offer five
food items in the quantities in the following table:
[[Page 30]]
[GRAPHIC] [TIFF OMITTED] TR09MY00.004
(ii) Use of Group IV quantities. Schools that are able to provide
quantities of food to children solely on the basis of their ages or
grade level should do so. Schools that cannot serve children on the
basis of age or grade level must provide all school age children Group
IV portions as specified in the table in paragraph (k)(1)(i) of this
section. Schools serving children on the basis of age or grade level
must plan and produce sufficient quantities of food to provide Groups I-
IV no less than the amounts specified for those children in the table in
paragraph (k)(1)(i) of this section, and sufficient quantities of food
to provide Group V no less than the specified amounts for Group IV. FNS
recommends that schools plan and produce sufficient quantities of food
to provide Group V children the larger amounts specified in the table in
paragraph (k)(1)(i) of this section. Schools that provide increased
portion sizes for Group V may comply with children's requests for
smaller portion sizes of the food items; however, schools must plan and
produce sufficient quantities of food to at least provide the serving
sizes required for Group IV. Schools must ensure that lunches are served
with the objective of providing the per lunch minimums for each age and
grade level as specified in the table in paragraph (k)(1)(i) of this
section.
(2) Quantities for the enhanced food-based menu planning approach.
Schools must at least offer five food items in the quantities in the
following table:
[[Page 31]]
[GRAPHIC] [TIFF OMITTED] TR09MY00.005
(3) Requirements for the meat/meat alternate component. The quantity
of the meat/meat alternate component must be the edible portion as
served. If the portion size of a food item for this component is
excessive, the school must reduce that portion and supplement it with
another meat/meat alternate to meet the full requirement. This component
must be served in a main dish or in a main dish and only one other food
item. Schools without daily choices in this component should not serve
any one meat alternate or form of meat (for example, ground, diced,
pieces) more than three times in the same week.
(i) Enriched macaroni. Enriched macaroni with fortified protein as
defined in appendix A to this part may be used to meet part of the meat/
meat alternate requirement when used as specified in appendix A to this
part. An enriched macaroni product with fortified protein as defined in
appendix A to this part may be used to meet part of the meat/meat
alternate component or the grains/breads component but not as both food
components in the same lunch.
(ii) Nuts and seeds. Nuts and seeds and their butters are allowed as
meat alternates in accordance with program guidance. Acorns, chestnuts,
and coconuts must not be used because of their low protein and iron
content. Nut and seed meals or flours may be used only as allowed under
appendix A to this part. Nuts or seeds may be used to meet no more than
one-half of the meat/meat alternate component with another meat/meat
alternate to meet the full requirement.
(iii) Yogurt. Yogurt may be used to meet all or part of the meat/
meat alternate requirement. Yogurt may be either plain or flavored,
unsweetened or sweetened. Noncommercial and/or nonstandardized yogurt
products, such as frozen yogurt, homemade yogurt, yogurt flavored
products, yogurt bars, yogurt covered fruit and/or nuts or similar
products are not creditable. Four
[[Page 32]]
ounces (weight) or \1/2\ cup (volume) of yogurt equals one ounce of the
meat/meat alternate requirement.
(4) Requirements for the vegetable/fruit component.
(i) General. Full strength vegetable or fruit juice may be used to
meet no more than one-half of the vegetable/fruit requirement. Cooked
dry beans or peas may be counted as either a vegetable or as a meat
alternate but not as both in the same meal.
(ii) Minimum quantities for the enhanced food-based menu planning.
Under the enhanced food-based menu planning approach, children in
kindergarten through grade six are offered vegetables/fruits in minimum
daily servings plus an additional one-half cup in any combination over a
five day period.
(5) Requirements for the grains/breads component--(i) Enriched or
whole grains. All grains/breads must be enriched or whole grain or made
with enriched or whole grain meal or flour.
(ii) Daily and weekly servings. The requirement for the grain/bread
component is based on minimum daily servings plus total servings over a
five day period. Schools serving lunch 6 or 7 days per week should
increase the weekly quantity by approximately 20 percent (\1/5\th) for
each additional day. When schools operate less than 5 days per week,
they may decrease the weekly quantity by approximately 20 percent (\1/
5\th) for each day less than five. The servings for biscuits, rolls,
muffins, and other grain/bread varieties are specified in the Food
Buying Guide for Child Nutrition Programs (PA 1331), an FNS publication.
(iii) Minimums under the traditional food-based menu planning
approach. Schools must offer at least one-half serving of the grain/
bread component to children in Group I and at least one serving to
children in Groups II-V daily. Schools which serve lunch at least 5 days
a week shall serve a total of at least five servings of grains/breads to
children in Group I and eight servings per week to children in Groups
II-V.
(iv) Desserts under the enhanced food-based menu planning approach.
Under the enhanced food-based menu planning approach, schools may count
up to one grain-based dessert per day for children in grades K-12
towards meeting the grains/breads component.
(6) Offer versus serve. Schools must offer all five required food
items. Senior high (as defined by the State educational agency) school
students may decline up to two of the five food items. At the school
food authority's option, students below senior high may decline one or
two of the five food items. The price of a reimbursable lunch does not
change if the student does not take a menu item or requests smaller
portions.
(7) Meal pattern exceptions for outlying areas. Schools in American
Samoa, Puerto Rico and the Virgin Islands may serve a starchy vegetable
such as yams, plantains, or sweet potatoes to meet the grain/bread
requirement.
(l) What are the requirements for lunches planned using an alternate
menu planning approach?--(1) Definition. Alternate menu planning
approaches are those adopted or developed by school food authorities or
State agencies that differ from the standard approaches established in
paragraphs (i) through (k) of this section. There are two types of
alternate approaches. First, there are specific modifications provided
in paragraph (l)(2) of this section. Second, there are major changes to
the standard menu planning approaches or new menu planning approaches
developed by school food authorities or State agencies (see paragraph
(l)(3) of this section).
(2) Use of modifications. There are three modifications available to
schools using one of the food-based menu planning approaches for
lunches. State agencies may or may not require prior approval or may
establish guidelines for using these modifications.
(i) Modification to the meat/meat alternate component. The required
minimum quantities of the meat/meat alternate component in the food-
based menu planning approaches may be offered as a weekly total with a
one ounce (or its equivalent for certain meat alternates) minimum daily
serving size. This modification does not apply if the minimum serving of
meat/meat alternate is less than one ounce.
(ii) Modification to age/grade groups under the traditional food-
based menu
[[Page 33]]
planning approach. Schools using the traditional food-based menu
planning approach may:
(A) For children in grades K-6, use the portion sizes in Group IV in
the table in paragraph (k)(1) of this section and follow the nutrient
levels for children in grades K-6 in paragraphs (c)(1) and (d)(2) of
this section; and/or
(B) For children in grades 7-12, use the portion sizes in Group IV
in the table in paragraph (k)(1) of this section and follow the nutrient
levels for children in grades 7-12 in paragraphs (c)(1) and (d)(2) of
this section.
(iii) Modification for the majority of children. Under the
traditional or enhanced food-based menu planning approaches, if only one
age or grade is outside the established levels, schools may follow the
levels for the majority of children for both quantities (see paragraph
(k)) and the nutrition standards in paragraphs (b) and (d) of this
section.
(3) Use and approval of major changes or new alternate approaches.
Within the guidelines established for developing alternate menu planning
approaches, school food authorities or State agencies may modify one of
the established menu planning approaches in paragraphs (i) through (k)
of this section or may develop their own menu planning approach. The
alternate menu planning approach must be available in writing for review
and monitoring purposes. No formal plan is required; guidance material,
a handbook or protocol is sufficient. As appropriate, the material must
address how the guidelines in paragraph (l)(4) of this section are met.
A State agency that develops an alternate approach that is exempt from
FNS approval under paragraph (l)(3)(iii) of this section must notify FNS
in writing when implementing the alternate approach.
(i) Approval of local level approaches. Any school food authority-
developed menu planning approach must have prior State agency review and
approval.
(ii) Approval of State agency approaches. Unless exempt under
paragraph (l)(3)(iii) of this section, any State agency-developed menu
planning approach must have prior FNS approval.
(iii) State agency approaches not subject to approval. A State
agency-developed menu planning approach does not need FNS approval if:
(A) Five or more school food authorities in the State use it; and
(B) The State agency maintains on-going oversight of the operation
and evaluation of the approach and makes any needed adjustments to its
policies and procedures to ensure that the appropriate guidelines of
paragraph (l)(4) of this section are met.
(4) Elements for major changes or new approaches. Any alternate menu
planning approach must:
(i) Offer fluid milk, as provided in paragraph (m) of this section;
(ii) Include offer versus serve for senior high students. Alternate
menu planning approaches should follow the offer versus serve procedures
in paragraphs (i)(2)(ii) and (k)(6) of this section, as appropriate. If
these requirements are not followed, the plan must indicate:
(A) The affected age/grade groups;
(B) The number and type of items (and, if applicable, the quantities
for the items) that constitute a reimbursable lunch under offer versus
serve;
(C) How such procedures will reduce plate waste; and
(D) How a reasonable level of calories and nutrients for the lunch
as taken is provided;
(iii) Meet the Recommended Dietary Allowances and lunchtime energy
allowances (nutrient levels) and indicate the age/grade groups served
and how the nutrient levels are met for those age/grade groups;
(iv) Follow the requirements for competitive foods in Sec. 210.11
and appendix B to this part;
(v) Follow the requirements for counting food items and products
towards the meal patterns. These requirements are found in paragraphs
(k)(3) through (k)(5) and paragraph (m) of this section, in appendices A
through C to this part, and in instructions and guidance issued by FNS.
This only applies if the alternate approach is a food-based menu
planning approach;
(vi) Identify a reimbursable lunch at the point of service;
[[Page 34]]
(A) To the extent possible, the procedures provided in paragraph
(i)(2)(i) of this section for the nutrient standard or assisted nutrient
standard menu planning approaches or for food-based menu planning
approaches provided in paragraph (k) of this section must be followed.
Any instructions or guidance issued by FNS that further defines the
elements of a reimbursable lunch must be followed when using the
existing regulatory provisions.
(B) Any alternate approach that deviates from the provisions in
paragraph (i)(2)(i) or paragraph (k) of this section must indicate what
constitutes a reimbursable lunch, including the number and type of items
(and, if applicable, the quantities for the items) which comprise the
lunch, and how a reimbursable lunch is to be identified at the point of
service;
(vii) Explain how the alternate menu planning approach can be
monitored under the applicable provisions of Sec. 210.18 and Sec.
210.19, including a description of the records that will be maintained
to document compliance with the program's administrative and nutrition
requirements. However, if the procedures under Sec. 210.19 cannot be
used to monitor the alternate approach, a description of procedures
which will enable the State agency to assess compliance with the
nutrition standards in paragraphs (b)(1) through (b)(4) of this section
must be included; and
(viii) Follow the requirements for weighted analysis and for
approved software for nutrient standard menu planning approaches as
required by paragraphs (i)(4) and (i)(5) of this section unless a State
agency-developed approach meets the criteria in paragraph (l)(3)(iii) of
this section. Through September 30, 2009, schools are not required to
conduct a weighted analysis.
(m) What are the requirements for offering milk?--(1) Types of milk.
(i) Under all menu planning approaches for students, schools must offer
students fluid milk in a variety of fat contents. Schools may offer
flavored or unflavored milk and lactose-free fluid milk.
(ii) All milk served in the Program must be pasteurized fluid milk
which meets State and local standards for such milk. However, infants
under 1 year of age must be served breast milk or iron-fortified infant
formula. All milk must have vitamins A and D at levels specified by the
Food and Drug Administration and must be consistent with State and local
standards for such milk.
(2) Inadequate milk supply. If a school cannot get a supply of milk,
it can still participate in the Program under the following conditions:
(i) If emergency conditions temporarily prevent a school that
normally has a supply of fluid milk from obtaining delivery of such
milk, the State agency may allow the school to serve meals during the
emergency period with an alternate form of milk or without milk.
(ii) If a school is unable to obtain a supply of any type of fluid
milk on a continuing basis, the State agency may approve the service of
meals without fluid milk if the school uses an equivalent amount of
canned milk or dry milk in the preparation of the meals. In Alaska,
Hawaii, American Samoa, Guam, Puerto Rico, and the Virgin Islands, if a
sufficient supply of fluid milk cannot be obtained, ``milk'' includes
reconstituted or recombined milk, or as otherwise allowed by FNS through
a written exception.
(3) Milk substitutes. If a school chooses to offer one or more
substitutes for fluid milk for non-disabled students with medical or
special dietary needs, the nondairy beverage(s) must provide the
nutrients listed in the following table. Milk substitutes must be
fortified in accordance with fortification guidelines issued by the Food
and Drug Administration. A school need only offer the nondairy
beverage(s) that it has identified as allowable fluid milk substitutes
according to this paragraph (m)(3).
------------------------------------------------------------------------
Nutrient Per cup
------------------------------------------------------------------------
Calcium.................................. 276 mg.
Protein.................................. 8 g.
Vitamin A................................ 500 IU.
Vitamin D................................ 100 IU.
Magnesium................................ 24 mg.
Phosphorus............................... 222 mg.
Potassium................................ 349 mg.
Riboflavin............................... 0.44 mg.
Vitamin B-12............................. 1.1 mcg.
------------------------------------------------------------------------
(4) Restrictions on the sale of milk. A school participating in the
Program, or
[[Page 35]]
a person approved by a school participating in the Program, must not
directly or indirectly restrict the sale or marketing of fluid milk (as
described in paragraph(m)(1)(ii) of this section) at any time or in any
place on school premises or at any school-sponsored event.
(n) Supplemental food. Eligible schools operating afterschool care
programs may be reimbursed for one meal supplement served to an eligible
child (as defined in Sec. 210.2) per day.
(1) Eligible schools mean schools that:
(i) Operate school lunch programs under the National School Lunch
Act;
(ii) Sponsor afterschool care programs as defined in Sec. 210.2;
and
(iii) Were participating in the Child and Adult Care Food Program as
of May 15, 1989.
(2) Meal supplements shall contain two different components from the
following four:
(i) A serving of fluid milk as a beverage, or on cereal, or used in
part for each purpose;
(ii) A serving of meat or meat alternate. Nuts and seeds and their
butters listed in program guidance are nutritionally comparable to meat
or other meat alternates based on available nutritional data. Acorns,
chestnuts, and coconuts are excluded and shall not be used as meat
alternates due to their low protein content. Nut or seed meals or flours
shall not be used as a meat alternate except as defined under appendix
A: Alternate Foods for Meals of this part;
(iii) A serving of vegetable(s) or fruit(s) or full-strength
vegetable or fruit juice, or an equivalent quantity of any combination
of these foods. Juice may not be served when milk is served as the only
other component;
(iv) A serving of whole-grain or enriched bread; or an equivalent
serving of cornbread, biscuits, rolls, muffins, etc., made with whole-
grain or enriched meal or flour; or a serving of cooked whole-grain or
enriched pasta or noodle products such as macaroni, or cereal grains
such as rice, bulgur, or corn grits; or an equivalent quantity of any
combination of these foods.
(3) Snacks served to infants ages birth through 11 months must meet
the requirements described in paragraph (n)(3)(iv) of this section.
Foods included in the snack must be of a texture and a consistency that
are appropriate for the age of the infant being served. The foods must
be served during a span of time consistent with the infant's eating
habits. For those infants whose dietary needs are more individualized,
exceptions to the meal pattern must be made in accordance with the
requirements found in paragraph (g)(1) of this section.
(i) Breastmilk and iron-fortified formula. Either breastmilk or
iron-fortified infant formula, or portions of both, must be served for
the entire first year. Snacks containing breastmilk and snacks
containing iron-fortified infant formula supplied by the school are
eligible for reimbursement. However, infant formula provided by a parent
(or guardian) and breastmilk fed directly by the infant's mother, during
a visit to the school, contribute to a reimbursable snack only when the
school supplies at least one component of the infant's snack.
(ii) Fruit juice. Juice should not be offered to infants until they
are 6 months of age and ready to drink from a cup. Feeding fruit juice
only from a cup will help develop behaviors that may prevent early
childhood caries. Fruit juice served as part of the meal pattern for
infants 8 through 11 months must be full-strength.
(iii) Solid foods. Solid foods of an appropriate texture and
consistency are required only when the infant is developmentally ready
to accept them. The school should consult with the infant's parent (or
guardian) in making the decision to introduce solid foods. Solid foods
should be introduced one at a time, on a gradual basis, with the intent
of ensuring the infant's health and nutritional well-being.
(iv) Infant meal pattern. Infant snacks must have, at a minimum,
breastmilk or iron-fortified infant formula, or portions of both, in the
appropriate amount indicated for the infant's age. For some breastfed
infants who regularly consume less than the minimum amount of breastmilk
per feeding, a serving of less than the minimum amount of breastmilk may
be offered. In these situations, additional
[[Page 36]]
breastmilk must be offered if the infant is still hungry. Some infants
may be developmentally ready to accept an additional food component.
Snacks are reimbursable when schools provide all of the components in
the meal pattern that the infant is developmentally ready to accept.
(A) Birth through 3 months. 4 to 6 fluid ounces of breastmilk or
iron-fortified infant formula--only breastmilk or iron-fortified formula
is required to meet the infant's nutritional needs.
(B) 4 through 7 months. 4 to 6 fluid ounces of breastmilk or iron-
fortified infant formula--only breastmilk or iron-fortified formula is
required to meet the infant's nutritional needs.
(C) 8 through 11 months. 2 to 4 fluid ounces of breastmilk, iron-
fortified infant formula, or full strength fruit juice; and 0 to \1/2\
slice of crusty bread (if developmentally ready) or 0 to 2 cracker type
products (if developmentally ready), which are made from whole-grain or
enriched meal or flour, and suitable as a finger food for an infant.
(4) The minimum amounts of food components to be served as meal
supplements as set forth in paragraphs (n)(2) and (n)(3) of this section
are as follows. Select two different components from the four listed.
(Juice may not be served when milk is served as the only other
component.)
Snack Pattern for Infants
------------------------------------------------------------------------
8 through 11
Birth through 3 months 4 through 7 months months
------------------------------------------------------------------------
4-6 fluid ounces of formula \1\ 4-6 fluid ounces 2-4 fluid ounces
or breastmilk \2,3\. of formula \1\ or of formula \1\,
breastmilk \2,3\. breastmilk \2,3\,
or fruit juice
\4\; and
0-\1/2\ slice of
bread \5\ or 0-2
crackers \5\.
------------------------------------------------------------------------
\1\ Infant formula must be iron-fortified.
\2\ Breastmilk or iron-fortified formula, or portions of both, may be
served; however, it is recommended that breastmilk be served in place
of formula from birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the
minimum amount of breastmilk per feeding, a serving of less than the
minimum amount of breastmilk may be offered, with additional
breastmilk offered if the infant is still hungry.
\4\ Fruit juice must be full-strength.
\5\ A serving of this component must be made from whole-grain or
enriched meal or flour. It is required only when the infant is
developmentally ready to accept it.
Supplements for Infants
----------------------------------------------------------------------------------------------------------------
Birth through 3 months 4 through 7 months 8 through 11 months
----------------------------------------------------------------------------------------------------------------
Supplement (snack)................ 4-6 fl. oz. breast 4-6 fl. oz. breast 2-4 fl. oz breast milk
milk \2,3\ or formula milk \2,3\ or formula \2,3\, formula \1\, or
\1\ \1\ fruit juice \4\;
...................... ...................... 0-\1/2\ bread \5\ or
...................... ...................... 0-2 crackers \5\.
----------------------------------------------------------------------------------------------------------------
\1\ Infant formula shall be iron-fortified.
\2\ It is recommended that breast milk be served in place of formula from birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a
serving of less than the minimum amount of breast milk may be offered with additional breast milk offered if
the infant is still hungry.
\4\ Fruit juice shall be full-strength.
\5\ Bread and bread alternates shall be made from whole-grain or enriched meal or flour. A serving of this
component shall be optional.
(o) What are the requirements for the infant lunch pattern?--(1)
Definitions. (i) Infant cereal means any iron-fortified dry cereal
especially formulated and generally recognized as cereal for infants
which is routinely mixed with breast milk or iron-fortified infant
formula prior to consumption.
(ii) Infant formula means any iron-fortified formula intended for
dietary use solely as a food for normal, healthy infants. Formulas
specifically formulated for infants with inborn errors of metabolism or
digestive or absorptive problems are not included in this definition.
Infant formula, when served, must be in liquid state at recommended
dilution.
(2) Feeding lunches to infants. Lunches served to infants ages birth
through 11 months must meet the requirements described in paragraph
(o)(5) of this section. Foods included in the lunch must be of a texture
and a consistency that are appropriate for the age of the infant being
served. The foods must be served during a span of time consistent with
the infant's eating habits. For those infants whose dietary needs are
more individualized, exceptions to the meal pattern must be made in
accordance with the requirements found in paragraph (g)(1) of this
section.
[[Page 37]]
(3) Breastmilk and iron-fortified formula. Either breastmilk or
iron-fortified infant formula, or portions of both, must be served for
the entire first year. Meals containing breastmilk and meals containing
iron-fortified infant formula supplied by the school are eligible for
reimbursement. However, infant formula provided by a parent (or
guardian) and breastmilk fed directly by the infant's mother, during a
visit to the school, contribute to a reimbursable lunch only when the
school supplies at least one component of the infant's meal.
(4) Solid foods. For infants ages 4 through 7 months, solid foods of
an appropriate texture and consistency are required only when the infant
is developmentally ready to accept them. The school should consult with
the infant's parent (or guardian) in making the decision to introduce
solid foods. Solid foods should be introduced one at a time, on a
gradual basis, with the intent of ensuring the infant's health and
nutritional well-being.
(5) Infant meal pattern. Infant lunches must have, at a minimum,
each of the food components indicated, in the amount that is appropriate
for the infant's age. For some breastfed infants who regularly consume
less than the minimum amount of breastmilk per feeding, a serving of
less than the minimum amount of breastmilk may be offered. In these
situations, additional breastmilk must be offered if the infant is still
hungry. Lunches may include portions of breastmilk and iron-fortified
infant formula as long as the total number of ounces meets, or exceeds,
the minimum amount required of this food component. Similarly, to meet
the component requirements for vegetables and fruit, portions of both
may be served.
(i) Birth through 3 months. 4 to 6 fluid ounces of breastmilk or
iron-fortified infant formula--only breastmilk or iron-fortified formula
is required to meet the infant's nutritional needs.
(ii) 4 through 7 months. Breastmilk or iron-fortified formula is
required. Some infants may be developmentally ready for solid foods of
an appropriate texture and consistency. Lunches are reimbursable when
schools provide all of the components in the meal pattern that the
infant is developmentally ready to accept.
(A) 4 to 8 fluid ounces of breastmilk or iron-fortified infant
formula; and
(B) 0 to 3 tablespoons of iron-fortified dry infant cereal; and
(C) 0 to 3 tablespoons of fruit or vegetable.
(iii) 8 through 11 months. Breastmilk or iron-fortified formula and
solid foods of an appropriate texture and consistency are required.
(A) 6 to 8 fluid ounces of breastmilk or iron-fortified infant
formula; and
(B) 2 to 4 tablespoons of iron-fortified dry infant cereal; and/or 1
to 4 tablespoons of meat, fish, poultry, egg yolk, or cooked dry beans
or peas; or \1/2\ to 2 ounces (weight) of cheese; or 1 to 4 ounces
(volume) of cottage cheese; or 1 to 4 ounces (weight) of cheese food or
cheese spread; and
(C) 1 to 4 tablespoons of fruit or vegetable.
(6) Infant meal pattern table. The minimum amounts of food
components to serve to infants, as described in paragraph (o)(5) of this
section, are:
Lunch Pattern for Infants
------------------------------------------------------------------------
8 through 11
Birth through 3 months 4 through 7 months months
------------------------------------------------------------------------
4-6 fluid ounces of formula \1\ 4-8 fluid ounces of 6-8 fluid ounces
or breastmilk \2,3\. formula \1\ or of formula \1\ or
breastmilk \2,3\; breastmilk \2,3\;
and and
0-3 tablespoons of 2-4 tablespoons of
infant cereal infant cereal
\1,4\; and. \1\; and/or
0-3 tablespoons of 1-4 tablespoons of
fruit or vegetable meat, fish,
or both \4\. poultry, egg
yolk, cooked dry
beans or peas; or
\1/2\-2 ounces of
cheese; or
1-4 ounces
(volume) of
cottage cheese;
or
1-4 ounces
(weight) of
cheese food or
cheese spread;
and
1-4 tablespoons of
fruit or
vegetable or
both.
------------------------------------------------------------------------
\1\ Infant formula and dry infant cereal must be iron-fortified.
[[Page 38]]
\2\ Breastmilk or formula, or portions of both, may be served; however,
it is recommended that breastmilk be served in place of formula from
birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the
minimum amount of breastmilk per feeding, a serving of less than the
minimum amount of breastmilk may be offered, with additional
breastmilk offered if the infant is still hungry.
\4\ A serving of this component is required only when the infant is
developmentally ready to accept it.
[60 FR 31208, June 13, 1995, 60 FR 57146, Nov. 14, 1995, as amended at;
62 FR 10189, Mar. 6, 1997; 64 FR 61773, Nov. 15, 1999; 65 FR 26913, May
9, 2000; 65 FR 31371, May 17, 2000; 65 FR 36317, June 8, 2000; 67 FR
36783, May 28, 2002; 69 FR 70872, Dec. 8, 2004; 70 FR 70033, Nov. 21,
2005; 73 FR 52907, Sept. 12, 2008]
Sec. 210.11 Competitive food services.
(a) Definitions. For the purpose of this section:
(1) Competitive foods means any foods sold in competition with the
Program to children in food service areas during the lunch periods.
(2) Food of minimal nutritional value means: (i) In the case of
artificially sweetened foods, a food which provides less than five
percent of the Reference Daily Intakes (RDI) for each of eight specified
nutrients per serving; and (ii) in the case of all other foods, a food
which provides less than five percent of the RDI for each of eight
specified nutrients per 100 calories and less than five percent of the
RDI for each of eight specified nutrients per serving. The eight
nutrients to be assessed for this purpose are--protein, vitamin A,
vitamin C, niacin, riboflavin, thiamine, calcium, and iron. All
categories of food of minimal nutritional value and petitioning
requirements for changing the categories are listed in appendix B of
this part.
(b) General. State agencies and school food authorities shall
establish such rules or regulations as are necessary to control the sale
of foods in competition with lunches served under the Program. Such
rules or regulations shall prohibit the sale of foods of minimal
nutritional value, as listed in appendix B of this part, in the food
service areas during the lunch periods. The sale of other competitive
foods may, at the discretion of the State agency and school food
authority, be allowed in the food service area during the lunch period
only if all income from the sale of such foods accrues to the benefit of
the nonprofit school food service or the school or student organizations
approved by the school. State agencies and school food authorities may
impose additional restrictions on the sale of and income from all foods
sold at any time throughout schools participating in the Program.
[53 FR 29147, Aug. 2, 1988, as amended at 59 FR 23614, May 6, 1994]
Sec. 210.12 Student, parent and community involvement.
(a) General. School food authorities shall promote activities to
involve students and parents in the Program. Such activities may include
menu planning, enhancement of the eating environment, Program promotion,
and related student-community support activities. School food
authorities are encouraged to use the school food service program to
teach students about good nutrition practices and to involve the school
faculty and the general community in activities to enhance the Program.
(b) Food service management companies. School food authorities
contracting with a food service management company shall comply with the
provisions of Sec. 210.16(a) regarding the establishment of an advisory
board of parents, teachers and students.
(c) Residential child care institutions. Residential child care
institutions shall comply with the provisions of this section, to the
extent possible.
Sec. 210.13 Facilities management.
(a) Health standards. The school food authority shall ensure that
food storage, preparation and service is in accordance with the
sanitation and health standards established under State and local law
and regulations.
(b) Food safety inspections. Schools shall obtain a minimum of two
food safety inspections during each school year conducted by a State or
local governmental agency responsible for food safety inspections. They
shall post in a publicly visible location a report of the most recent
inspection conducted, and provide a copy of the inspection report
[[Page 39]]
to a member of the public upon request. Sites participating in more than
one child nutrition program shall only be required to obtain two food
safety inspections per school year if the nutrition programs offered use
the same facilities for the production and service of meals.
(c) Storage. The school food authority shall ensure that the
necessary facilities for storage, preparation and service of food are
maintained. Facilities for the handling, storage, and distribution of
purchased and donated foods shall be such as to properly safeguard
against theft, spoilage and other loss.
[54 FR 29147, Aug. 2, 1988, as amended at 64 FR 50740, Sept. 20, 1999;
70 FR 34630, June 15, 2005]
Sec. 210.14 Resource management.
(a) Nonprofit school food service. School food authorities shall
maintain a nonprofit school food service. Revenues received by the
nonprofit school food service are to be used only for the operation or
improvement of such food service, except that, such revenues shall not
be used to purchase land or buildings, unless otherwise approved by FNS,
or to construct buildings. Expenditures of nonprofit school food service
revenues shall be in accordance with the financial management system
established by the State agency under Sec. 210.19(a) of this part.
School food authorities may use facilities, equipment, and personnel
supported with nonprofit school food revenues to support a nonprofit
nutrition program for the elderly, including a program funded under the
Older Americans Act of 1965 (42 U.S.C. 3001 et seq.).
(b) Net cash resources. The school food authority shall limit its
net cash resources to an amount that does not exceed 3 months average
expenditures for its nonprofit school food service or such other amount
as may be approved by the State agency in accordance with Sec.
210.19(a).
(c) Financial assurances. The school food authority shall meet the
requirements of the State agency for compliance with Sec. 210.19(a)
including any separation of records of nonprofit school food service
from records of any other food service which may be operated by the
school food authority as provided in paragraph (a) of this section.
(d) Use of donated foods. The school food authority shall enter into
an agreement with the distributing agency to receive donated foods as
required by part 250 of this chapter. In addition, the school food
authority shall accept and use, in as large quantities as may be
efficiently utilized in its nonprofit school food service, such foods as
may be offered as a donation by the Department.
[53 FR 29147, Aug. 2, 1988, as amended at 60 FR 31215, June 13, 1995]
Sec. 210.15 Reporting and recordkeeping.
(a) Reporting summary. Participating school food authorities are
required to submit forms and reports to the State agency or the
distributing agency, as appropriate, to demonstrate compliance with
Program requirements. These reports include, but are not limited to:
(1) A Claim for Reimbursement and, for the month of October and as
otherwise specified by the State agency, supporting data as specified in
accordance with Sec. 210.8 of this part;
(2) An application and agreement for Program operations between the
school food authority and the State agency, and a Free and Reduced Price
Policy Statement as required under Sec. 210.9;
(3) A written response to reviews pertaining to corrective action
taken for Program deficiencies;
(4) A commodity school's preference whether to receive part of its
donated food allocation in cash for processing and handling of donated
foods as required under Sec. 210.19(b);
(5) A written response to audit findings pertaining to the school
food authority's operation as required under Sec. 210.22;
(6) Information on civil rights complaints, if any, and their
resolution as required under Sec. 210.23; and
(7) The number of food safety inspections obtained per school year
by each school under its jurisdiction.
(b) Recordkeeping summary. In order to participate in the Program, a
school food authority shall maintain records to demonstrate compliance
with Program requirements. These records include but are not limited to:
[[Page 40]]
(1) Documentation of participation data by school in support of the
Claim for Reimbursement and data used in the claims review process, as
required under Sec. 210.8(a), (b), and (c) of this part;
(2) Production and menu records and, if appropriate, nutrition
analysis records as required under Sec. 210.10, whichever is
applicable.
(3) Participation records to demonstrate positive action toward
providing one lunch per child per day as required under Sec.
210.10(a)(2), whichever is applicable;
(4) Currently approved and denied applications for free and reduced
price lunches and a description of the verification activities,
including verified applications, and any accompanying source
documentation in accordance with 7 CFR 245.6a of this Title; and
(5) Food safety inspection records to demonstrate compliance with
Sec. 210.13(b).
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12582, Mar. 28, 1989; 56
FR 32941, July 17, 1991; 60 FR 31215, June 13, 1995; 65 FR 26912, 26922,
May 9, 2000; 70 FR 34630, June 15, 2005]
Sec. 210.16 Food service management companies.
(a) General. Any school food authority (including a State agency
acting in the capacity of a school food authority) may contract with a
food service management company to manage its food service operation in
one or more of its schools. However, no school or school food authority
may contract with a food service management company to operate an a la
carte food service unless the company agrees to offer free, reduced
price and paid reimbursable lunches to all eligible children. Any school
food authority that employs a food service management company in the
operation of its nonprofit school food service shall:
(1) Adhere to the procurement standards specified in Sec. 210.21
when contracting with the food service management company;
(2) Ensure that the food service operation is in conformance with
the school food authority's agreement under the Program;
(3) Monitor the food service operation through periodic on-site
visits;
(4) Retain control of the quality, extent, and general nature of its
food service, and the prices to be charged the children for meals;
(5) Retain signature authority on the State agency-school food
authority agreement, free and reduced price policy statement and claims;
(6) Ensure that all federally donated foods received by the school
food authority and made available to the food service management company
accrue only to the benefit of the school food authority's nonprofit
school food service and are fully utilized therein;
(7) Maintain applicable health certification and assure that all
State and local regulations are being met by a food service management
company preparing or serving meals at a school food authority facility;
(8) Establish an advisory board composed of parents, teachers, and
students to assist in menu planning;
(9) Obtain written approval of invitations for bids and requests for
proposals before their issuance when required by the State agency. The
school food authority must incorporate all State agency required changes
to its solicitation documents before issuing those documents; and
(10) Ensure that the State agency has reviewed and approved the
contract terms and that the school food authority has incorporated all
State agency required changes into the contract or amendment before any
contract or amendment to an existing food service management company
contract is executed. Any changes made by the school food authority or a
food service management company to a State agency pre-approved prototype
contract or State agency approved contract term must be approved in
writing by the State agency before the contract is executed. When
requested, the school food authority must submit all procurement
documents, including responses submitted by potential contractors, to
the State agency, by the due date established by the State agency.
(b) Invitation to bid. In addition to adhering to the procurement
standards under Sec. 210.21, school food authorities contracting with
food service management companies shall ensure that:
[[Page 41]]
(1) The invitation to bid or request for proposal contains a 21-day
cycle menu developed in accordance with the provisions of Sec. 210.10,
to be used as a standard for the purpose of basing bids or estimating
average cost per meal. A school food authority with no capability to
prepare a cycle menu may, with State agency approval, require that each
food service management company include a 21-day cycle menu, developed
in accordance with the provisions of Sec. 210.10, with its bid or
proposal. The food service management company must adhere to the cycle
for the first 21 days of meal service. Changes thereafter may be made
with the approval of the school food authority.
(2) Any invitation to bid or request for proposal indicate that
nonperformance subjects the food service management company to specified
sanctions in instances where the food service management company
violates or breaches contract terms. The school food authority shall
indicate these sanctions in accordance with the procurement provisions
stated in Sec. 210.21.
(c) Contracts. Contracts that permit all income and expenses to
accrue to the food service management company and ``cost-plus-a-
percentage-of-cost'' and ``cost-plus-a-percentage-of-income'' contracts
are prohibited. Contracts that provide for fixed fees such as those that
provide for management fees established on a per meal basis are allowed.
Contractual agreements with food service management companies shall
include provisions which ensure that the requirements of this section
are met. Such agreements shall also include the following:
(1) The food service management company shall maintain such records
as the school food authority will need to support its Claim for
Reimbursement under this part, and shall, at a minimum, report claim
information to the school food authority promptly at the end of each
month. Such records shall be made available to the school food
authority, upon request, and shall be retained in accordance with Sec.
210.23(c).
(2) The food service management company shall have State or local
health certification for any facility outside the school in which it
proposes to prepare meals and the food service management company shall
maintain this health certification for the duration of the contract.
(3) No payment is to be made for meals that are spoiled or
unwholesome at time of delivery, do not meet detailed specifications as
developed by the school food authority for each food component specified
in Sec. 210.10, or do not otherwise meet the requirements of the
contract. Specifications shall cover items such a grade, purchase units,
style, condition, weight, ingredients, formulations, and delivery time.
(d) Duration of contract. The contract between a school food
authority and food service management company shall be of a duration of
no longer than 1 year; and options for the yearly renewal of a contract
signed after February 16, 1988, may not exceed 4 additional years. All
contracts shall include a termination clause whereby either party may
cancel for cause with 60-day notification.
[53 FR 29147, Aug. 2, 1988, as amended at 60 FR 31215, June 13, 1995; 65
FR 26912, May 9, 2000; 72 FR 61491, Oct. 31, 2007]
Subpart D_Requirements for State Agency Participation
Sec. 210.17 Matching Federal funds.
(a) State revenue matching. For each school year, the amount of
State revenues appropriated or used specifically by the State for
program purposes shall not be less than 30 percent of the funds received
by such State under section 4 of the National School Lunch Act during
the school year beginning July 1, 1980; provided that, the State
revenues derived from the operation of such programs and State revenues
expended for salaries and administrative expenses of such programs at
the State level are not considered in this computation. However, if the
per capita income of any State is less than the per capita income of the
United States, the matching requirements so computed shall be decreased
by the percentage by which the State per capita income is below the per
capita income of the United States.
(b) Private school exemption. No State in which the State agency is
prohibited
[[Page 42]]
by law from disbursing State appropriated funds to nonpublic schools
shall be required to match general cash assistance funds expended for
meals served in such schools, or to disburse to such schools any of the
State revenues required to meet the requirements of paragraph (a) of
this section. Furthermore, the requirements of this section do not apply
to schools in which the Program is administered by a FNSRO.
(c) Territorial waiver. American Samoa and the Commonwealth of the
Northern Mariana Islands shall be exempted from the matching
requirements of paragraph (a) of this section if their respective
matching requirements are under $100,000.
(d) Applicable revenues. The following State revenues, appropriated
or used specifically for program purposes which are expended for any
school year shall be eligible for meeting the applicable percentage of
the matching requirements prescribed in paragraph (a) of this section
for that school year:
(1) State revenues disbursed by the State agency to school food
authorities for program purposes, including revenue disbursed to
nonprofit private schools where the State administers the program in
such schools;
(2) State revenues made available to school food authorities and
transferred by the school food authorities to the nonprofit school food
service accounts or otherwise expended by the school food authorities in
connection with the nonprofit school food service program; and
(3) State revenues used to finance the costs (other than State
salaries or other State level administrative costs) of the nonprofit
school food service program, i.e.:
(i) Local program supervision;
(ii) Operating the program in participating schools; and
(iii) The intrastate distribution of foods donated under part 250 of
this chapter to schools participating in the program.
(e) Distribution of matching revenues. All State revenues made
available under paragraph (a) of this section are to be disbursed to
school food authorities participating in the Program, except as provided
for under paragraph (b) of this section. Distribution of matching
revenues may be made with respect to a class of school food authorities
as well as with respect to individual school food authorities.
(f) Failure to match. If, in any school year, a State fails to meet
the State revenue matching requirement, as prescribed in paragraph (a)
of this section, the general cash assistance funds utilized by the State
during that school year shall be subject to recall by and repayment to
FNS.
(g) Reports. Within 120 days after the end of each school year, each
State agency shall submit an Annual Report of Revenues (FNS-13) to FNS.
This report identifies the State revenues to be counted toward the State
revenue matching requirements specified in paragraph (a) of this
section.
(h) Accounting system. The State agency shall establish or cause to
be established a system whereby all expended State revenues counted in
meeting the matching requirements prescribed in paragraph (a) of this
section are properly documented and accounted for.
Sec. 210.18 Administrative reviews.
(a) Implementation dates. For the school year beginning July 1,
1992, each State agency shall conduct administrative reviews as
prescribed under this section. However, FNS will approve a State
agency's written request if FNS determines that the State agency has
demonstrated good cause to delay implementation of the provisions
specified under this section to January 1, 1993. At State agency
discretion, State agencies may begin implementation of the provisions of
this section on August 16, 1991. FNS review responsibilities are
specified under Sec. 210.29 of this part.
(b) Definitions. The following definitions are provided in order to
clarify State agency administrative review requirements:
(1) Administrative reviews means the initial comprehensive on-site
evaluation of all school food authorities participating in the Program
in accordance with the provisions of this section. The term
``administrative review'' is used to reflect a review of
[[Page 43]]
both critical and general areas in accordance with paragraphs (g) and
(h) of this section, and includes other areas of Program operations
determined by the State agency to be important to Program performance.
(2) Critical areas means the following two performance standards
described in detail in paragraph (g) of this section which serve as
measures of compliance with Program regulations:
(i) Performance Standard 1--Certification/Counting/Claiming--All
free, reduced price and paid lunches claimed for reimbursement are
served only to children eligible for free, reduced price and paid
lunches, respectively; and counted, recorded, consolidated and reported
through a system which consistently yields correct claims.
(ii) Performance Standard 2--Meal Elements. Lunches claimed for
reimbursement within the school food authority contain meal elements
(food items/components, menu items or other items, as applicable) as
required under Sec. 210.10.
(3) Documented corrective action means written notification required
of the school food authority to certify that the corrective action
required for each violation has been completed and to notify the State
agency of the dates of completion. Documented corrective action may be
provided at the time of the review or may be submitted to the State
agency within specified timeframes.
(4) Follow-up reviews means any visit(s) to the school food
authority subsequent to the administrative review to ensure corrective
actions are taken.
(5) General areas means the areas of review specified in paragraph
(h) of this section.
(6) Large school food authority means, in any State:
(i) All school food authorities that participate in the Program and
have enrollments of 40,000 children or more each; or
(ii) If there are less than two school food authorities with
enrollments of 40,000 or more, the two largest school food authorities
that participate in the Program and have enrollments of 2,000 children
or more each.
(7) Participation factor means the percentages of children approved
by the school for free lunches, reduced price lunches, and paid lunches,
respectively, who are participating in the Program. The free
participation factor is derived by dividing the number of free lunches
claimed for any given period by the product of the number of children
approved for free lunches for the same period times the operating days
in that period. A similar computation is used to determine the reduced
price and paid participation factors. The number of children approved
for paid lunches is derived by subtracting the number of children
approved for free and reduced price lunches for any given period from
the total number of children enrolled in the reviewed school for the
same period of time, if available. If such enrollment figures are not
available, the most recent total number of children enrolled shall be
used. If school food authority participation factors are unavailable or
unreliable, State-wide data shall be employed.
(8) Review period means the period of time covered by the
administrative review or follow-up review. The review period is
specified in paragraph (f)(2) of this section.
(9) Review threshold means the degree of error in a critical area of
review which, if exceeded during an administrative review or follow-up
review of a school food authority, may trigger a follow-up review of
that school food authority.
(10) Small school food authority means, in any State, a school food
authority that participates in the Program and is not a large school
food authority, as defined in this section.
(c) Timing of reviews. The first year of the first 5-year review
cycle began on July 1, 1992, or as otherwise authorized under paragraph
(a) of this section and shall end on June 30, 1994. For each State
agency, the first 5-year review cycle shall end on June 30, 1998.
Administrative reviews and follow-up reviews shall be conducted as
follows:
(1) Administrative reviews. At a minimum, State agencies shall
conduct administrative reviews of all school food authorities at least
once during each 5-year review cycle; provided that each school food
authority is reviewed at
[[Page 44]]
least once every 6 years. The on-site portion of the administrative
review shall be completed during the school year in which the review was
begun.
(2) Expanded review cycle. State agencies are encouraged to conduct
administrative reviews of large school food authorities and of any
school food authorities which may benefit from a more frequent interval
than the minimum 5-year cycle required in paragraph (c)(1) of this
section.
(3) Exceptions. FNS may, on an individual school food authority
basis, approve written requests for 1-year extensions to the 6-year
review interval specified in paragraph (c)(1) of this section if FNS
determines this requirement conflicts with efficient State agency
management of the Program.
(4) Follow-up reviews. The State agency is encouraged to conduct
first follow-up reviews in the same school year as the administrative
review; but in no event shall first follow-up reviews be conducted later
than December 31 of the school year following the administrative review.
Subsequent follow-up reviews shall be scheduled in accordance with
paragraph (i)(5) of this section.
(d) Scheduling school food authorities. The State agency shall use
its own criteria to schedule school food authorities for administrative
reviews; provided that the requirements of paragraph (c) of this section
are met. State agencies are encouraged to take into consideration the
findings of the claims review process required under Sec. 210.8(b)(2)
of this part in the selection of school food authorities.
(1) Schedule of reviews. To ensure no unintended overlap occurs, the
State agency shall inform FNS of the anticipated schedule of school food
authority reviews upon request.
(2) Reporting follow-up review activity. At such time as the State
agency determines that a follow-up review is needed, the State agency
shall notify FNS of the names of those large school food authorities
exceeding any one of the critical area review thresholds specified in
paragraph (i) of this section.
(3) Exceptions. In any school year in which FNS or OIG conducts a
review or investigation of a school food authority in accordance with
Sec. 210.19(a)(5) of this part, the State agency shall, unless
otherwise authorized by FNS, delay conduct of a scheduled administrative
review until the following school year. The State agency shall document
any exception authorized under this paragraph.
(e) Number of schools to review. The State agency is encouraged to
review all schools meeting the school selection criteria specified in
paragraph (e)(1) of this section. At a minimum, the State agency shall
review the number of schools specified in paragraph (e)(1) of this
section and shall select the schools to be reviewed on the basis of the
school selection criteria specified in paragraph (e)(2) of this section.
(1) Minimum number of schools. Except for residential child care
institutions, the State agency shall review all schools with a free
average daily participation of 100 or more and a free participation
factor of 100 percent or more. In no event shall the State agency review
less than the minimum number of schools illustrated in table A:
Table A
------------------------------------------------------------------------
Minimum no. of
No. of schools in the school food authority schools to be
reviewed
------------------------------------------------------------------------
1 to 5.............................................. 1
6 to 10............................................. 2
11 to 20............................................ 3
21 to 40............................................ 4
41 to 60............................................ 6
61 to 80............................................ 8
81 to 100........................................... 10
101 or more.......................................... \1\ 12
------------------------------------------------------------------------
\1\ Twelve plus 5 percent of the number of schools over 100. Fractions
shall be rounded to the nearest whole number.
(2) School selection criteria. (i) Selection of additional schools
to meet the minimum number of schools required under paragraph (e)(1) of
this section, shall be based on the following criteria:
(A) Elementary schools with a free average daily participation of
100 or more and a free participation factor of 97 percent or more;
(B) Secondary schools with a free average daily participation of 100
or more and a free participation factor of 77 percent or more; and
(C) Combination schools with a free average daily participation of
100 or more and a free participation factor of 87 percent or more. A
combination
[[Page 45]]
school means a school with a mixture of elementary and secondary grades.
(ii) When the number of schools selected on the basis of the
criteria established in paragraph (A) through paragraph (C) of this
paragraph are not sufficient to meet the minimum number of schools
required under paragraph (e)(1) of this section, the schools selected
for review shall be selected on the basis of State agency criteria which
may include low participation schools, recommendations from a food
service director based on findings from the on-site visits or the claims
review process required under Sec. 210.8(a) of this part; or any school
in which the daily lunch counts appear questionable, e.g., identical or
very similar claiming patterns, and/or large changes in free lunch
counts.
(3) Pervasive problems. If the State agency review finds pervasive
problems in a school food authority, FNS may authorize the State agency
to cease review activities prior to reviewing the required number of
schools under paragraph (e)(1) of this section. Where FNS authorizes the
State agency to cease review activity, FNS may either conduct the review
activity itself or refer the school food authority to OIG.
(f) Scope of review. During the course of an administrative review,
each State agency shall monitor compliance with the critical and general
areas identified in paragraphs (g) and (h) of this section.
(1) Review form. State agencies shall use the administrative review
form prescribed by FNS for the critical areas of review specified in
paragraph (g) of this section. State agencies may use their own
administrative review form for the general areas of review specified in
paragraph (h) of this section.
(2) Review period. (i) The review period for administrative reviews
and follow-up reviews shall cover, at a minimum, the most recent month
for which a Claim for Reimbursement was submitted; provided that such
Claim for Reimbursement covers at least 10 operating days.
(ii) Subject to FNS approval, the State agency may conduct a review
early in the school year, prior to the submission of a Claim for
Reimbursement. In such cases, the review period shall be the prior month
of operation in the current school year, provided that such month
includes at least 10 operating days.
(3) Audit findings. To prevent duplication of effort, the State
agency may use any recent and currently applicable findings from
Federally-required audit activity or from any State-imposed audit
requirements. Such findings may be used only insofar as they pertain to
the reviewed school(s) or the overall operation of the school food
authority and they are relevant to the review period. The State agency
shall document the source and the date of the audit.
(g) Critical areas of review. The performance standards listed in
this paragraph are deemed critical since compliance in these areas is
directly linked to the service of a reimbursable lunch.
(1) Performance Standard 1 (All free, reduced price and paid lunches
claimed for reimbursement are served only to children eligible for free,
reduced price and paid lunches, respectively; and are counted, recorded,
consolidated and reported through a system which consistently yields
correct claims.) The State agency shall determine that the free and
reduced price eligibility determinations are correct. In addition, the
State agency shall determine that for each day of operation for the
review period, the number of free, reduced price and paid lunches
claimed for each reviewed school is not more than the number of lunches
served to children eligible for free, reduced price and paid lunches,
respectively, in those schools for the review period. The State agency
shall also determine that a lunch counting system is being used which
accurately counts, records, consolidates and reports the reimbursable
lunches served, by type.
(i) For each school reviewed, the State agency shall:
(A) Determine the number of children eligible for free, reduced
price and paid lunches, by type, for the review period. To make this
determination:
(1) The State agency shall:
(i) Review all approved free and reduced price applications for
children in the reviewed schools back to the beginning of the school
year to determine whether each child's application is
[[Page 46]]
complete and correctly approved in accordance with all applicable
provisions of 7 CFR part 245; or
(ii) Review all approved free and reduced price applications
effective for the review period for children in the reviewed schools; or
(iii) Review all approved free and reduced price applications
effective on the day(s) the review is conducted for children in the
reviewed schools.
(2) In lieu of reviewing all of the free and reduced price
applications as required under paragraph (g)(1)(i)(A)(1) of this
section, the State agency may review a statistically valid sample of
those applications. If the State agency chooses to review a
statistically valid sample of applications, the State agency shall
ensure that the sample size is large enough so that there is a 95
percent chance that the actual error rate for all applications is not
less than 2 percentage points less than the error rate found in the
sample (i.e., the lower bound of the one-sided 95 percent confidence
interval is no more than 2 percentage points less than the point
estimate). In addition, the State agency shall determine the need for
follow-up reviews and base fiscal action upon the error rate found in
the sample.
(3) Evaluate whether the previous year's eligibility determinations
are used after 30 operating days following the first day of school, or
as otherwise established by the State agency; provided that the State
agency-developed timeframe does not exceed the 30 operating day limit.
(4) In the case where children are determined eligible for free
lunches based on documentation from the local food stamp, Food
Distribution Program on Indian Reservations (FDPIR) or Temporary
Assistance for Needy Families (TANF) office which certifies that the
children are currently members of households receiving benefits under
the Food Stamp Program, FDPIR or TANF, determine that the certification
from the Food Stamp Program, FDPIR or TANF is official; all the
information required under Sec. 245.6 of this part is complete; and
such children were enrolled in the school under review during the review
period.
(B) Evaluate the system for issuing benefits and updating
eligibility status by validating the mechanism(s) the reviewed school
uses to provide benefits to eligible children, e.g., master list. The
State agency shall determine whether the system is adequate and, within
the timeframes established in Sec. 210.7(c)(1)(ii)(B), reflects changes
due to verification findings, transfers, reported changes in household
size or income, or from a household's decision to decline school lunch
benefits or any notification from the household that it is no longer
certified to receive food stamp, Food Distribution Program for
Households on Indian Reservations (FDPIR) or Temporary Assistance for
Needy Families (TANF) benefits.
(C) Determine whether the lunch counting system yields correct
claims. At a minimum, the State agency shall determine whether:
(1) The daily lunch counts, by type, for the review period are more
than the product of the number of children determined by the school/
school food authority to be eligible for free, reduced price, and paid
lunches for the review period times an attendance factor. If the lunch
count, for any type, appears questionable or significantly exceeds the
product of the number of eligibles, for that type, times an attendance
factor, documentation showing good cause must be available for review by
the State agency.
(2) Each type of food service line provides accurate point of
service lunch counts, by type, and those lunch counts are correctly
counted and recorded. If an alternative counting system is employed (in
accordance with Sec. 210.7(c)(2)), the State agency shall ensure that
it provides accurate counts of reimbursable lunches, by type, and is
correctly implemented as approved by the State agency.
(3) All lunches are correctly counted, recorded, consolidated and
reported for the day they are served.
(ii) For each school food authority reviewed, the State agency shall
review lunch count records to ensure that the lunch counts submitted by
each reviewed school are correctly consolidated, recorded, and reported
by the school food authority on the Claim for Reimbursement.
(2) Performance Standard 2 (Lunches claimed for reimbursement within
the
[[Page 47]]
school food authority contain meal elements (food items/components, menu
items or other items, as applicable) as required under Sec. 210.10. For
each school reviewed, the State agency must:
(i) For the day of the review, observe the serving line(s) to
determine whether all required meal elements (food items/components,
menu items or other items, as applicable) as required under Sec. 210.10
are offered.
(ii) For the day of the review, observe a significant number of the
Program lunches counted at the point of service for each type of serving
line, to determine whether those lunches contain the required number of
meal elements (food items/components, menu items or other items, as
applicable) as required under Sec. 210.10.
(iii) Review menu records for the review period to determine whether
all required meal elements (food items/components, menu items or other
items, as applicable) as required under Sec. 210.10 have been offered.
(h) General areas of review. The general areas listed in this
paragraph reflect major Program requirements. The general areas of
review shall include, but are not limited to, the following areas:
(1) Free and reduced price process. In the course of the review of
each school food authority, the State agency shall:
(i) Review the implementation of the free and reduced price policy
statement to ensure it is implemented as approved.
(ii) Evaluate whether the required minimum number of applications
are verified with respect to the selection method used.
(iii) Determine that applications for verification are selected
through random or focused sampling in accordance with the provisions of
Sec. 245.6a of this title and FNS Instructions, and that no
discrimination exists in the selection process.
(iv) Establish that verification is completed by December 15. If the
administrative review occurs prior to the December 15 deadline, the
State agency shall evaluate the verification activities that have
occurred to date and assess whether these activities represent a good
faith effort that will result in compliance with the requirements of
Sec. 245.6a of this title.
(v) Confirm that the verification process is complete for each
application verified by or on behalf of the reviewed schools.
Verification is considered complete either when a child's eligibility
for the level of benefits for which he or she was approved is confirmed,
changed to a higher level of benefit, or a letter of adverse action has
been sent.
(vi) Ensure that verification records are maintained as required by
Sec. 245.6a(c) of this title.
(vii) Determine that, for each reviewed school, the lunch count
system does not overtly identify children eligible for free and reduced
price lunches.
(viii) Review a representative sample of denied applications to
evaluate whether the determining official correctly denied applicants
for free and reduced price lunches.
(2) Food quantities. For each school reviewed, the State agency must
observe a significant number of Program lunches counted at the point of
service for each type of serving line to determine whether those lunches
appear to provide meal elements (food items/components, menu items or
other items, as applicable) in the quantities required under Sec.
210.10. If visual observation suggests that quantities are insufficient,
the State agency shall require the reviewed schools to provide
documentation demonstrating that the required amounts of food were
available for service for each day of the review period.
(3) Civil rights. The State agency shall examine the school food
authority's compliance with the civil rights provisions specified in
Sec. 210.23(b) of this part.
(4) Monitoring responsibilities. The State agency shall ensure that
the school food authority conducts on-site reviews in accordance with
Sec. 210.8(a)(1) of this part and monitors claims in accordance with
Sec. 210.8(a)(2) and (a)(3) of this part.
(5) Reporting and recordkeeping. The State agency shall determine
that the school food authority submits reports and maintains records as
required under 7 CFR parts 210 and 245.
(i) Follow-up reviews. All school food authorities found to have a
critical
[[Page 48]]
area violation in excess of any one of the review thresholds specified
in this paragraph are subject to follow-up reviews. State agencies shall
notify FNS of the names of large school food authorities exceeding
critical area review thresholds in accordance with paragraph (d)(2) of
this section. The State agency shall conduct a first follow-up review of
any large school food authority found on an administrative review to
have critical area violations in excess of any one of the review
thresholds. State agencies shall also conduct a first follow-up review
of at least 25 percent of the small school food authorities found on a
review to have critical area violations in excess of any one of the
review thresholds. State agencies shall conduct additional follow-up
reviews of any school food authority which has a critical area violation
exceeding a review threshold on the first follow-up or any subsequent
follow-up review regardless of whether such review is conducted by FNS
or the State agency.
(1) Selection of small school food authorities. In determining which
small school food authorities to include in the follow-up review sample,
State agencies shall select those school food authorities which have the
most serious problems, including, but not limited to, systemic
accountability problems, large overclaims, significant lunch pattern
violations, etc.
(2) Selection of schools. (i) If the critical area violation(s)
responsible for follow-up review activity are limited to school food
authority level problems (e.g. centralized application processing or
centralized kitchen), the State agency may limit the follow-up review to
the school food authority level.
(ii) If the critical area violation(s) responsible for follow-up
review activity were identified in the review of a school(s), then State
agencies shall review at least the minimum number of schools required
under paragraph (e)(1) of this section. State agencies shall meet the
minimum number of schools requirement by selecting those schools found,
on a previous review, to have significant critical area violations. If
any additional schools must be selected to meet the minimum required
number, the State agency shall select from those schools which meet
State agency-developed criteria identified under paragraph (e)(2)(ii) of
this section.
(3) Review thresholds. The review thresholds apply only to the
critical areas of review and are designed to limit follow-up reviews to
those school food authorities with serious problems. The provisions of
paragraph (i) of this section apply when:
(i) For Performance Standard 1--
(A) A number of the reviewed schools in a school food authority, as
specified in Table B, have an inadequate system for certification,
issuing benefits or updating eligibility status; or for counting,
recording, consolidating or reporting lunches, by type; or
(B) The school food authority has an inadequate system for
consolidating lunch counts, by type, or for reporting claims; or, if
applicable, for certification, issuing benefits or updating eligibility
status.
(C) At the school and school food authority level, a system for
certification, issuing benefits or updating eligibility status is
inadequate if 10 percent or more (but not less than 100 lunches) of the
free and reduced price lunches claimed for the review period (for any
school reviewed) are claimed incorrectly due to errors of certification,
benefit issuance or updating of eligibility status.
Table B
------------------------------------------------------------------------
Number of
schools
Number of schools reviewed violating
performance
standard 1
------------------------------------------------------------------------
1 to 5.................................................... 1
6 to 10................................................... 2
11 to 20.................................................. 3
21 to 30.................................................. 4
31 to 40.................................................. 5
41 to 50.................................................. 6
51 to 60.................................................. 7
61 to 70.................................................. 8
71 to 80.................................................. 9
81 to 90.................................................. 10
91 to 100................................................. 11
101 or more............................................... 11*
------------------------------------------------------------------------
* 11 plus the number identified above for the appropriate increment.
(ii) For Performance Standard 2--10 percent or more of the total
number of Program lunches observed in a school food authority are
missing one or more of the required meal elements (food items/
components, menu items or
[[Page 49]]
other items, as applicable) as required under Sec. 210.10.
(4) Scope of follow-up reviews. On any follow-up review, the State
agency is encouraged to review all of the critical and general areas of
review specified in paragraph (g) and (h) of this section for those
schools which were not reviewed during the administrative review. At a
minimum, the State agency shall:
(i) For each school selected for review (or for the school food
authority, as applicable,) review the critical areas for which the
review thresholds were exceeded by the school food authority on a
previous review;
(ii) Determine whether the school food authority has satisfactorily
completed the corrective actions in accordance with paragraph (k) of
this section required for both critical and general areas within the
timeframes established by the State agency;
(iii) Evaluate whether these corrective actions resolved the
problem(s); and
(iv) If the State agency did not evaluate the certification, count
and milk/meal service procedures for the School Breakfast Program (7 CFR
part 220) and/or the Special Milk Program for Children (7 CFR part 215)
or offering meal supplements in after hour care programs (7 CFR part
210) in those schools selected for the administrative review and
participating in those Programs, the State agency shall do so for those
schools selected for the first follow-up review.
(5) Critical area violations identified in a follow-up review.
Critical area violations identified on a follow-up review shall be
addressed as follows:
(i) If, during a follow-up review, the State agency determines, that
corrective actions have not been satisfactorily completed in accordance
with the documented corrective action, the State agency shall: require
the school food authority to resolve the problems and to submit
documented corrective action to the State agency ; take fiscal action
for critical area violations as specified in paragraph (m) of this
section; and withhold Program payments in accordance with paragraph (l)
of this section, until such time as a follow-up review, requested by the
school food authority, indicates the problem has been corrected. If the
State agency determines that the corrective actions have been completed
as specified in the documented corrective action, but those corrective
actions do not effectively resolve the problem, the State agency shall
follow the requirements for new critical area violations specified in
paragraphs (i)(5)(ii) and (iii) of this section.
(ii) If new critical area violations are observed that exceed a
review threshold, the State agency shall: Require the school food
authority to resolve the problems and to submit documented corrective
action to the State agency; take fiscal action as specified in paragraph
(m) of this section; and conduct a follow-up review within 6 operating
months of the first follow-up review.
(iii) If new critical area violations are observed which do not
exceed review thresholds, the State agency shall: Require the school
food authority to resolve the problem and to submit documented
corrective action to the State agency within specified timeframes; and
take fiscal action in accordance with paragraph (m) of this section. If
adequate documented corrective action is not received within those
timeframes, the State agency shall withhold Program payments in
accordance with paragraph (l) of this section, until such time as
adequate documented corrective action is received.
(6) General area violations identified in a follow-up review.
General area violations identified in a follow-up review shall be
addressed as follows:
(i) If, during a follow-up review, the State agency determines that
corrective actions have not been taken in accordance with the documented
corrective action, the State agency shall withhold Program payments in
accordance with paragraph (l) of this section, until such time as the
State agency receives adequate documented corrective action.
(ii) If the State agency determines that the corrective actions
taken did not effectively resolve the problem, or if new general area
violations are observed on a follow-up review, the State agency shall
require the school food authority to resolve the problem and
[[Page 50]]
to submit documented corrective action to the State agency within
specified timeframes. If adequate documented corrective action is not
received within those timeframes, the State agency shall withhold
Program payments in accordance with paragraph (l) of this section, until
such time as adequate documented corrective action is received.
(7) Exceptions. FNS may, on an individual school food authority
basis, approve written requests for exceptions to the follow-up review
requirement specified in paragraph (i)(1) of this section if FNS
determines that the requirement conflicts with efficient State agency
management of the program.
(j) Exit conference and notification. The State agency shall hold an
exit conference at the close of the administrative review and of any
subsequent follow-up review to discuss the violations observed, the
extent of the violations and a preliminary assessment of the actions
needed to correct the violations. The State agency shall discuss an
appropriate deadline(s) for completion of corrective action, provided
that the deadline(s) results in the completion of corrective action on a
timely basis. After every review, the State agency shall provide written
notification of the review findings to the school food authority's
Superintendent (or equivalent in a non-public school food authority) or
authorized representative. The written notification shall include the
review findings, the needed corrective actions, the deadlines for
completion of the corrective action, and the potential fiscal action. As
a part of the denial of all or a part of a Claim for Reimbursement or
withholding payment in accordance with the provisions of this section,
the State agency shall provide the school food authority a written
notice which details the grounds on which the denial of all or a part of
the Claim for Reimbursement or withholding payment is based. This
notice, which shall be sent by certified mail, return receipt requested,
shall also include a statement indicating that the school food authority
may appeal the denial of all or a part of a Claim for Reimbursement or
withholding payment and the entity (i.e., FNS or State agency) to which
the appeal should be directed. The State agency shall notify the school
food authority, in writing, of the appeal procedures as specified in
Sec. 210.18(q) for appeals of State agency findings, and for appeals of
FNS findings, provide a copy of Sec. 210.29(d)(3) of the regulations.
(k) Corrective action. Corrective action is required for any
violation under either the critical or general areas of the review.
Corrective action shall be applied to all schools in the school food
authority, as appropriate, to ensure that previously deficient practices
and procedures are revised system-wide.
Corrective actions may include training, technical assistance,
recalculation of data to ensure the correctness of any claim that the
school food authority is preparing at the time of the review, or other
actions. Fiscal action shall be taken in accordance with paragraph (m)
of this section.
(1) Extensions of the timeframes. If extraordinary circumstances
arise where a school food authority is unable to complete the required
corrective action within the timeframes specified by the State agency,
the State agency may extend the timeframes upon written request of the
school food authority.
(2) Documented corrective action. Documented corrective action is
required for any degree of violation of general or critical areas
identified in an administrative review or on any follow-up review.
Documented corrective action may be provided at the time of the review;
however, it shall be postmarked or submitted to the State agency no
later than 30 days from the deadline for completion of each required
corrective action, as specified under paragraph (j) of this section or
as otherwise extended by the State agency under paragraph (k)(1) of this
section. The State agency shall maintain any documented corrective
action on file for review by FNS.
(l) Withholding payment. At a minimum, the State agency shall
withhold Program payments to a school food authority as follows:
(1) Cause. (i) The State agency shall withhold all Program payments
to a school food authority if documented
[[Page 51]]
corrective action for critical area violation(s) which exceed the review
threshold(s) is not provided within the deadlines specified in paragraph
(k)(2) of this section; and/or
(ii) The State agency shall withhold all Program payments to a
school food authority if, in the event that a follow-up review is not
conducted, the State agency finds that corrective action for a critical
area violation which exceeded the review threshold was not completed
within the deadlines specified in paragraph (j) of this section or as
otherwise extended by the State agency under paragraph (k)(1) of this
section; and/or
(iii) The State agency shall withhold all Program payments to a
school food authority if, on a follow-up review, the State agency finds
a critical area violation which exceeded the review threshold on a
previous review and continues to exceed the review threshold on a
follow-up review.
(iv) The State agency may withhold payments at its discretion, if
the State agency finds that documented corrective action is not provided
within the deadlines specified in paragraph (k)(2) of this section, that
corrective action is not complete or that corrective action was not
taken as specified in the documented corrective action for a general
area violation or for a critical area violation which did not exceed the
review threshold.
(2) Duration. In all cases, Program payments shall be withheld until
such time as corrective action is completed, and documented corrective
action is received and deemed acceptable by the State agency or as
otherwise specified in paragraph (i)(5) of this section. Subsequent to
the State agency's acceptance of the corrective actions (and a follow-up
review, when required), payments will be released for all lunches served
in accordance with the provisions of this part during the period the
payments were withheld. In very serious cases, the State agency will
evaluate whether the degree of non-compliance warrants termination in
accordance with Sec. 210.25 of this part.
(3) Exceptions. The State agency may, at its discretion, reduce the
amount required to be withheld from a school food authority pursuant to
paragraph (l)(1)(i) through (iii) of this section by as much as 60
percent of the total Program payments when it is determined to be in the
best interest of the Program. FNS may authorize a State agency to limit
withholding of funds to an amount less than 40 percent of the total
Program payments, if FNS determines such action to be in the best
interest of the Program.
(4) Failure to withhold payments. FNS may suspend or withhold
Program payments, in whole or in part, to those State agencies failing
to withhold Program payments in accordance with paragraph (l)(1) of this
section and may withhold administrative funds in accordance with Sec.
235.11(b) of this title. The withholding of Program payments will remain
in effect until such time as the State agency documents compliance with
paragraph (l)(1) of this section to FNS. Subsequent to the documentation
of compliance, any withheld administrative funds will be released and
payment will be released for any lunches served in accordance with the
provisions of this part during the period the payments were withheld.
(m) Fiscal action. For purposes of the critical areas of the
administrative review and any follow-up reviews, fiscal action is
required for all violations of Performance Standards 1 and 2. Except
that, on an administrative review, the State agency may limit fiscal
action from the point corrective action occurs back through the
beginning of the review period for errors identified under paragraphs
(g)(1)(i)(A) and (g)(1)(i)(B) of this section, provided corrective
action occurs. Fiscal action shall be taken in accordance with the
provisions identified under Sec. 210.19(c) of this part.
(n) Miscellaneous reporting requirement. Each State agency shall
report to FNS the results of reviews by March 1 of each school year, on
a form designated by FNS. In such annual reports, the State agency shall
include the results of all administrative reviews and follow-up reviews
conducted in the preceding school year.
(o) Summary of reporting requirements. Each State agency shall
report to FNS:
(1) The names of those large school food authorities exceeding any
one of the critical area review thresholds as
[[Page 52]]
described in paragraph (d)(2) of this section.
(2) The results of reviews by March 1 of each school year on a form
designated by FNS, as specified under paragraph (n) of this section.
(p) Recordkeeping. Each State agency shall keep records which
document the details of all reviews and demonstrate the degree of
compliance with the critical and general areas of review. Records shall
be retained by the State agency as specified in Sec. 210.23(c) of this
part. Such records shall include documentation of administrative reviews
and follow-up reviews. As appropriate, the records shall include
documented corrective action, and documentation of withholding of
payments and fiscal action, including recoveries made. Additionally, the
State agency must have on file:
(1) Criteria for selecting schools on first and follow-up reviews in
accordance with paragraphs (e)(2)(ii) and (i)(2)(ii) of this section.
(2) Its system for selecting small school food authorities for
follow-up reviews in accordance with paragraph (i)(1) of this section.
(3) Documentation demonstrating compliance with the statistical
sampling requirements in accordance with paragraph (g)(1)(i)(A)(1) of
this section, if applicable.
(q) School food authority appeal of State agency findings. Except
for FNS-conducted reviews authorized under Sec. 210.29(d)(2), each
State agency shall establish an appeal procedure to be followed by a
school food authority requesting a review of a denial of all or a part
of the Claim for Reimbursement or withholding payment arising from
administrative or follow-up review activity conducted by the State
agency under Sec. 210.18 of this part. State agencies may use their own
appeal procedures provided the same procedures are applied to all
appellants in the State and the procedures meet the following
requirements: appellants are assured of a fair and impartial hearing
before an independent official at which they may be represented by legal
counsel; decisions are rendered in a timely manner not to exceed 120
days from the date of the receipt of the request for review; appellants
are afforded the right to either a review of the record with the right
to file written information, or a hearing which they may attend in
person; and adequate notice is given of the time, date, place and
procedures of the hearing. If the State agency has not established its
own appeal procedures or the procedures do not meet the above listed
criteria, the State agency shall observe the following procedures at a
minimum:
(1) The written request for a review shall be postmarked within 15
calendar days of the date the appellant received the notice of the
denial of all or a part of the Claim for Reimbursement or withholding of
payment, and the State agency shall acknowledge the receipt of the
request for appeal within 10 calendar days;
(2) The appellant may refute the action specified in the notice in
person and by written documentation to the review official. In order to
be considered, written documentation must be filed with the review
official not later than 30 calendar days after the appellant received
the notice. The appellant may retain legal counsel, or may be
represented by another person. A hearing shall be held by the review
official in addition to, or in lieu of, a review of written information
submitted by the appellant only if the appellant so specifies in the
letter of request for review. Failure of the appellant school food
authority's representative to appear at a scheduled hearing shall
constitute the appellant school food authority's waiver of the right to
a personal appearance before the review official, unless the review
official agrees to reschedule the hearing. A representative of the State
agency shall be allowed to attend the hearing to respond to the
appellant's testimony and to answer questions posed by the review
official;
(3) If the appellant has requested a hearing, the appellant and the
State agency shall be provided with at least 10 calendar days advance
written notice, sent by certified mail, return receipt requested, of the
time, date and place of the hearing;
(4) Any information on which the State agency's action was based
shall be available to the appellant for inspection from the date of
receipt of the request for review;
[[Page 53]]
(5) The review official shall be an independent and impartial
official other than, and not accountable to, any person authorized to
make decisions that are subject to appeal under the provisions of this
section;
(6) The review official shall make a determination based on
information provided by the State agency and the appellant, and on
Program regulations;
(7) Within 60 calendar days of the State agency's receipt of the
request for review, by written notice, sent by certified mail, return
receipt requested, the review official shall inform the State agency and
the appellant of the determination of the review official. The final
determination shall take effect upon receipt of the written notice of
the final decision by the school food authority;
(8) The State agency's action shall remain in effect during the
appeal process;
(9) The determination by the State review official is the final
administrative determination to be afforded to the appellant.
(r) FNS review activity. The term ``State agency'' and all the
provisions specified in paragraphs (a)-(h) of this section refer to FNS
when FNS conducts administrative reviews or follow-up reviews in
accordance with Sec. 210.29(d)(2). FNS will notify the State agency of
the review findings and the need for corrective action and fiscal
action. The State agency shall pursue any needed follow-up activity.
[56 FR 32942, July 17, 1991; 56 FR 55527, Oct. 28, 1991, as amended at
57 FR 38584, Aug. 26, 1992; 57 FR 40729, Sept. 4, 1992; 59 FR 1894, Jan.
13, 1994; 60 FR 31215, June 13, 1995; 60 FR 57147, Nov. 14, 1995; 64 FR
50740, 50741, Sept. 20, 1999; 64 FR 72471, Dec. 28, 1999; 65 FR 26922,
May 9, 2000]
Effective Date Note: At 73 FR 76858, Dec. 18, 2008, Sec. 210.18 was
amended by revising paragraphs (h)(1)(iii) and (vi) and by amending
paragraph (h)(1)(iv) by revising the first sentence and by removing the
words ``December 15'' from the second sentence and adding in their place
the words ``November 15,'' effective February 17, 2009. For the
convenience of the user, the revised text is set forth as follows:
Sec. 210.18 Administrative reviews.
* * * * *
(h) * * *
(1) * * *
(iii) Determine that applications for verification are selected in
accordance with the applicable procedures in Sec. 245.6a(c) of this
chapter and that no discrimination exists in the selection process.
(iv) Establish that verification is completed by November 15 (or
other date established in accordance with Sec. 245.6a(b)(2)(i) or
(b)(2)(ii) of this chapter) including any follow-up activities as
required in Sec. 245.6a(f)(6) of this chapter. * * *
* * * * *
(vi) Ensure that verification records are maintained as required by
Sec. 245.6a(i) of this chapter.
* * * * *
Sec. 210.19 Additional responsibilities.
(a) General Program management. Each State agency shall provide an
adequate number of consultative, technical and managerial personnel to
administer programs and monitor performance in complying with all
Program requirements.
(1) Compliance with nutrition standards. (i) Beginning with School
Year 1996-1997, State agencies shall evaluate compliance, over the
school week, with the nutrition standards for lunches and, as
applicable, for breakfasts. Review activity may be confined to lunches
served under the Program unless a menu planning approach is used
exclusively in the School Breakfast Program or unless the school food
authority only offers breakfasts under the School Breakfast Program. For
lunches, compliance with the requirements in Sec. 210.10(b) and Sec.
210.10(c), (d), or (i)(1) or the procedures developed under Sec.
210.10(l), as applicable, is assessed. For breakfasts, see Sec.
220.13(f)(3) of this chapter.
(A) These evaluations may be conducted at the same time a school
food authority is scheduled for an administrative review in accordance
with Sec. 210.18. State agencies may also conduct these evaluations in
conjunction with technical assistance visits, other reviews, or
separately.
(B) The type of evaluation conducted by the State agency shall be
determined by the menu planning approach chosen by the school food
authority. At
[[Page 54]]
a minimum, the State agency shall review at least one school for each
type of menu planning approach used in the school food authority.
(C) In addition, State agencies are encouraged to review breakfasts
offered under the School Breakfast Program as well if the school food
authority requires technical assistance from the State agency to meet
the nutrition standards or if corrective action is needed. Such review
shall determine compliance with the appropriate requirements in Sec.
220.13(f)(3) of this chapter and may be done at the time of the initial
review or as part of a follow-up to assess compliance with the nutrition
standards.
(ii) At a minimum, State agencies shall conduct evaluations of
compliance with the nutrition standards in Sec. 210.10 and Sec. 220.8
of this Chapter at least once during each 5-year review cycle provided
that each school food authority is evaluated at least once every 6
years, except that the first cycle shall begin July 1, 1996, and shall
end on June 30, 2003. The compliance evaluation for the nutrition
standards shall be conducted on the menu for any week of the current
school year in which such evaluation is conducted. The week selected
must continue to represent the current menu planning approach(es).
(iii) For school food authorities choosing the nutrient standard or
assisted nutrient standard menu planning approaches provided in Sec.
210.10(i), Sec. 210.10(j), Sec. 220.8(e) or Sec. 220.8(f) of this
chapter, or developed under the procedures in Sec. 210.10(l) or Sec.
220.8(h) of this chapter, the State agency shall assess the nutrient
analysis to determine if the school food authority is properly applying
the methodology in these paragraphs, as applicable. Part of this
assessment shall be an independent review of menus and production
records to determine if they correspond to the analysis conducted by the
school food authority and if the menu, as offered, over a school week,
corresponds to the nutrition standards set forth in Sec. 210.10(b) and
the appropriate calorie and nutrient levels in Sec. 210.10(c) or Sec.
210.10(i)(1), whichever is applicable.
(iv) For school food authorities choosing the food-based menu
planning approaches provided in Sec. 210.10(k) or Sec. 220.8(g) of
this chapter or developed under the procedures in Sec. 210.10(l) or
Sec. 220.8(h) of this chapter, the State agency must determine if the
nutrition standards in Sec. 210.10 and Sec. 220.8 of this chapter are
met. The State agency shall conduct a nutrient analysis in accordance
with the procedures in Sec. 210.10(i) or Sec. 220.8(e) of this
chapter, as appropriate, except that the State agency may:
(A) Use the nutrient analysis of any school or school food authority
that offers lunches or breakfasts using the food-based menu planning
approaches provided in Sec. 210.10(k) and Sec. 220.8(g) of this
chapter and that conducts its own nutrient analysis under the criteria
for such analysis established in Sec. 210.10 and Sec. 220.8 of this
chapter for the nutrient standard and assisted nutrient standard menu
planning approaches; or
(B) Develop its own method for compliance reviews, subject to USDA
approval.
(v) If the menu for the school week fails to comply with the
nutrition standards specified in Sec. 210.10(b) and/or Sec. 220.8(a)
and the appropriate nutrient levels in either Sec. 210.10(c), Sec.
210.10(d), or Sec. 210.10(i)(1) whichever is applicable, and/or Sec.
220.8(b), Sec. 220.8(c) or Sec. 220.8(e)(1) of this chapter, whichever
is applicable, the school food authority shall develop, with the
assistance and concurrence of the State agency, a corrective action plan
designed to rectify those deficiencies. The State agency shall monitor
the school food authority's execution of the plan to ensure that the
terms of the corrective action plan are met.
(vi) For school food authorities following an alternate approach as
provided under Sec. 210.10(l) or Sec. 220.8(h) of this chapter that
does not allow for use of the monitoring procedures in paragraphs
(a)(1)(ii) or (a)(1)(iii) of this section, the State agency shall
monitor compliance following the procedures developed in accordance with
Sec. 210.10(l) or Sec. 220.8(h) of this chapter, whichever is
appropriate.
(vii) If a school food authority fails to meet the terms of the
corrective action plan, the State agency shall determine if the school
food authority is
[[Page 55]]
working in good faith towards compliance and, if so, may renegotiate the
corrective action plan, if warranted. However, if the school food
authority has not been acting in good faith to meet the terms of the
corrective action plan and refuses to renegotiate the plan, the State
agency shall determine if a disallowance of reimbursement funds as
authorized under paragraph (c) of this section is warranted.
(2) Assurance of compliance for finances. Each State agency shall
ensure that school food authorities comply with the requirements to
account for all revenues and expenditures of their nonprofit school food
service. School food authorities shall meet the requirements for the
allowability of nonprofit school food service expenditures in accordance
with this part and, 7 CFR part 3015 and 7 CFR part 3016, or 7 CFR part
3019, as applicable. All costs resulting from contracts that do not meet
the requirements of this part are unallowable nonprofit school food
service account expenses. When the school food authority fails to
incorporate State agency required changes to solicitation or contract
documents, all costs resulting from the subsequent contract award are
unallowable charges to the nonprofit school food service account. The
State agency shall ensure compliance with the requirements to limit net
cash resources and shall provide for approval of net cash resources in
excess of three months' average expenditures. Each State agency shall
monitor, through review or audit or by other means, the net cash
resources of the nonprofit school food service in each school food
authority participating in the Program. In the event that net cash
resources exceed 3 months' average expenditures for the school food
authority's nonprofit school food service or such other amount as may be
approved in accordance with this paragraph, the State agency may require
the school food authority to reduce the price children are charged for
lunches, improve food quality or take other action designed to improve
the nonprofit school food service. In the absence of any such action,
the State agency shall make adjustments in the rate of reimbursement
under the Program.
(3) Improved management practices. The State agency shall work with
the school food authority toward improving the school food authority's
management practices where the State agency has found poor food service
management practices leading to decreasing or low child participation
and/or poor child acceptance of the Program or of foods served. If a
substantial number of children who routinely and over a period of time
do not favorably accept a particular item that is offered; return foods;
or choose less than all food items/components or foods and menu items,
as authorized under Sec. 210.10, poor acceptance of certain menus may
be indicated.
(4) Program compliance. Each State agency shall require that school
food authorities comply with the applicable provisions of this part. The
State agency shall ensure compliance through audits, administrative
reviews, technical assistance, training guidance materials or by other
means.
(5) Investigations. Each State agency shall promptly investigate
complaints received or irregularities noted in connection with the
operation of the Program, and shall take appropriate action to correct
any irregularities. State agencies shall maintain on file, evidence of
such investigations and actions. FNS and OIG may make reviews or
investigations at the request of the State agency or where FNS or OIG
determines reviews or investigations are appropriate.
(6) Food service management companies. Each State agency shall
annually review each contract (including all supporting documentation)
between any school food authority and food service management company to
ensure compliance with all the provisions and standards set forth in
this part before execution of the contract by either party. When the
State agency develops a prototype contract for use by the school food
authority that meets the provisions and standards set forth in this
part, this annual review may be limited to changes made to that
contract. Each State agency shall review each contract amendment between
a school food authority and food service management company to ensure
compliance with all the provisions and
[[Page 56]]
standards set forth in this part before execution of the amended
contract by either party. The State agency may establish due dates for
submission of the contract or contract amendment documents. Each State
agency shall perform an on-site review of each school food authority
contracting with a food service management company, at least once during
each 5-year period. The State agency is encouraged to conduct such a
review when performing reviews in accordance with Sec. 210.18. Such
reviews shall include an assessment of the school food authority's
compliance with Sec. 210.16 of this part. The State agency may require
that all food service management companies that wish to contract for
food service with any school food authority in the State register with
the State agency. State agencies shall provide assistance upon request
of a school food authority to assure compliance with Program
requirements.
(b) Donated food distribution information. Information on schools
eligible to receive donated foods available under section 6 of the
National School Lunch Act (42 U.S.C. 1755) shall be prepared each year
by the State agency with accompanying information on the average daily
number of lunches to be served in such schools. This information shall
be prepared as early as practicable each school year and forwarded no
later than September 1 to the Distributing agency. The State agency
shall be responsible for promptly revising the information to reflect
additions or deletions of eligible schools, and for providing such
adjustments in participation as are determined necessary by the State
agency. Schools shall be consulted by the Distributing agency with
respect to the needs of such schools relating to the manner of selection
and distribution of commodity assistance.
(c) Fiscal action. State agencies are responsible for ensuring
Program integrity at the school food authority level. State agencies
shall take fiscal action against school food authorities for Claims for
Reimbursement that are not properly payable under this part including,
if warranted, the disallowance of funds for failure to take corrective
action in accordance with paragraph (a)(1) of this section. In taking
fiscal action, State agencies shall use their own procedures within the
constraints of this part and shall maintain all records pertaining to
action taken under this section. The State agency may refer to FNS for
assistance in making a claims determination under this part.
(1) Definition. Fiscal action includes, but is not limited to, the
recovery of overpayment through direct assessment or offset of future
claims, disallowance of overclaims as reflected in unpaid Claims for
Reimbursement, submission of a revised Claim for Reimbursement, and
correction of records to ensure that unfiled Claims for Reimbursement
are corrected when filed. Fiscal action also includes disallowance of
funds for failure to take corrective action in accordance with paragraph
(a)(1) of this section.
(2) General principles. When taking fiscal action, State agencies
shall consider the following:
(i) The State agency shall identify the school food authority's
correct entitlement and take fiscal action when any school food
authority claims or receives more Federal funds than earned under Sec.
210.7 of this part. In order to take fiscal action, the State agency
shall identify accurate counts of reimbursable lunches through available
data, if possible. In the absence of reliable data, the State agency
shall reconstruct the lunch accounts in accordance with procedures
established by FNS. Such procedures will be based on the best available
information including, participation factors for the review period, data
from similar schools in the school food authority, etc.
(ii) Unless otherwise specified under Sec. 210.18(m) of this part,
fiscal action shall be extended back to the beginning of the school year
or that point in time during the current school year when the infraction
first occurred, as applicable. Based on the severity and longevity of
the problem, the State agency may extend fiscal action back to previous
school years, as applicable. The State agency shall ensure that any
Claim for Reimbursement, filed subsequent to the reviews conducted under
Sec. 210.18 and prior to the implementation of corrective action, is
limited to
[[Page 57]]
lunches eligible for reimbursement under this part.
(iii) In taking fiscal action, State agencies shall assume that
children determined by the reviewer to be incorrectly approved for free
and reduced price lunches participated at the same rate as correctly
approved children in the corresponding lunch category.
(3) Failure to collect. If a State agency fails to disallow a claim
or recover an overpayment from a school food authority, as described in
this section, FNS will notify the State agency that a claim may be
assessed against the State agency. In all such cases, the State agency
shall have full opportunity to submit evidence concerning overpayment.
If after considering all available information, FNS determines that a
claim is warranted, FNS will assess a claim in the amount of such
overpayment against the State agency. If the State agency fails to pay
any such demand for funds promptly, FNS will reduce the State agency's
Letter of Credit by the sum due in accordance with FNS' existing offset
procedures for Letter of Credit. In such event, the State agency shall
provide the funds necessary to maintain Program operations at the level
of earnings from a source other than the Program.
(4) Interest charge. If an agreement cannot be reached with the
State agency for payment of its debts or for offset of debts on its
current Letter of Credit, interest will be charged against the State
agency from the date the demand leter was sent, at the rate established
by the Secretary of Treasury.
(5) Use of recovered payment. The amounts recovered by the State
agency from school food authorities may be utilized during the fiscal
year for which the funds were initially available, first, to make
payments to school food authorities for the purposes of the Program; and
second, to repay any State funds expended in the reimbursement of claims
under the Program and not otherwise repaid. Any amounts recovered which
are not so utilized shall be returned to FNS in accordance with the
requirements of this part.
(6) Exceptions. The State agency need not disallow payment or
collect an overpayment arising out of the situations described in
paragraphs (c)(6) (i) and (ii) of this section; provided that the school
food authority corrects the problem(s) to the satisfaction of the State
agency:
(i) When any review or audit reveals that a school food authority is
failing to meet the quantities for each meal element (food item/
component, menu item or other items, as applicable) as required under
Sec. 210.10.
(ii) When any review or audit reveals that a school food authority
is approving applications which indicate that the households' incomes
are within the Income Eligibility Guidelines issued by the Department or
the applications contain food stamp or TANF case numbers or FDPIR case
numbers or other FDPIR identifiers but the applications are missing the
information specified in paragraph (1)(ii) of the definition of
Documentation in Sec. 245.2 of this chapter; or
(iii) when any review or audit reveals that a school food
authority's failure to meet the nutrition standards of Sec. 210.10 is
unintentional and the school food authority is meeting the requirements
of a corrective plan developed and agreed to under paragraph (a)(1)(iii)
of this section.
(7) Claims adjustment. FNS will have the authority to determine the
amount of, to settle, and to adjust any claim arising under the Program,
and to compromise or deny such claim or any part thereof. FNS will also
have the authority to waive such claims if FNS determines that to do so
would serve the purposes of the Program. This provision shall not
diminish the authority of the Attorney General of the United States
under section 516 of title 28, U.S. Code, to conduct litigation on
behalf of the United States.
(d) Management evaluations. Each State agency shall provide FNS with
full opportunity to conduct management evaluations of all State agency
Program operations and shall provide OIG with full opportunity to
conduct audits of all State agency Program operations. Each State agency
shall make available its records, including records of the receipt and
disbursement of funds under the Program and records of any claim
compromised in accordance with this paragraph, upon a reasonable request
by FNS, OIG, or the
[[Page 58]]
Comptroller General of the United States. FNS and OIG retain the right
to visit schools and OIG also has the right to make audits of the
records and operations of any school. In conducting management
evaluations, reviews, or audits in a fiscal year, the State agency, FNS,
or OIG may disregard an overpayment if the overpayment does not exceed
$600. A State agency may establish, through State law, regulation or
procedure, an alternate disregard threshold that does not exceed $600.
This disregard may be made once per each management evaluation, review,
or audit per Program within a fiscal year. However, no overpayment is to
be disregarded where there is substantial evidence of violations of
criminal law or civil fraud statutes.
(e) Additional requirements. Nothing contained in this part shall
prevent a State agency from imposing additional requirements for
participation in the Program which are not inconsistent with the
provisions of this part.
(f) Cooperation with the Child and Adult Care Food Program. On an
annual basis, the State agency shall provide the State agency which
administers the Child and Adult Care Food Program with a list of all
elementary schools in the State participating in the National School
Lunch Program in which 50 percent or more of enrolled children have been
determined eligible for free or reduced price meals as of the last
operating day of the previous October, or other month specified by the
State agency. The first list shall be provided by March 15, 1997;
subsequent lists shall be provided by February 1 of each year or, if
data is based on a month other than October, within 90 calendar days
following the end of the month designated by the State agency. The State
agency may provide updated free and reduced price enrollment data on
individual schools to the State agency which administers the Child and
Adult Care Food Program only when unusual circumstances render the
initial data obsolete. In addition, the State agency shall provide the
current list, upon request, to sponsoring organizations of day care
homes participating in the Child and Adult Care Food Program.
[53 FR 29147, Aug. 2, 1988]
Editorial Note: For Federal Register citations affecting Sec.
210.19, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 210.20 Reporting and recordkeeping.
(a) Reporting summary. Participating State agencies shall submit
forms and reports to FNS to demonstrate compliance with Program
requirements. The reports include but are not limited to:
(1) Requests for cash to make reimbursement payments to school food
authorities as required under Sec. 210.5(a);
(2) Information on the amounts of Federal Program funds expended and
obligated to date (SF-269) as required under Sec. 210.5(d);
(3) Statewide totals on Program participation (FNS-10) as required
under Sec. 210.5(d);
(4) Information on State funds provided by the State to meet the
State matching requirements (FNS-13) specified under Sec. 210.17(g);
(5) The names of school food authorities in need of a follow-up
review;
(6) Results of reviews and audits;
(7) Results of the commodity preference survey and recommendations
for commodity purchases as required under Sec. 250.13(k) of this
chapter; and
(8) Results of the State agency's review of schools' compliance with
the food safety inspection requirement in Sec. 210.13(b) by November 15
following each of school years 2005-2006 through 2008-2009, beginning
November 15, 2006. The report will be based on data supplied by the
school food authorities in accordance with Sec. 210.15(a)(7).
(b) Recordkeeping summary. Participating State agencies are required
to maintain records to demonstrate compliance with Program requirements.
The records include but are not limited to:
(1) Accounting records and source documents to control the receipt,
custody and disbursement of Federal Program funds as required under
Sec. 210.5(a);
(2) Documentation supporting all school food authority claims paid
by the State agency as required under Sec. 210.5(d);
(3) Documentation to support the amount the State agency reported
having used for State revenue matching as required under Sec.
210.17(h);
[[Page 59]]
(4) Records supporting the State agency's review of net cash
resources as required under Sec. 210.19(a);
(5) Reports on the results of investigations of complaints received
or irregularities noted in connection with Program operations as
required under Sec. 210.19(a)
(6) Records of all reviews and audits, including records of action
taken to correct Program violations; and records of fiscal action taken,
including documentation of recoveries made;
(7) State agency criteria for selecting schools for reviews and
small school food authorities for follow-up reviews;
(8) Documentation of action taken to disallow improper claims
submitted by school food authorities, as required by Sec. 210.19(c) and
as determined through claims processing, resulting from actions such as
reviews, audits and USDA audits;
(9) Records of USDA audit findings, State agency's and school food
authorities' responses to them and of corrective action taken as
required by Sec. 210.22(a);
(10) Records pertaining to civil rights responsibilities as defined
under Sec. 210.23(b);
(11) Records pertaining to the annual food preference survey of
school food authorities as required by Sec. 250.13(k) of this chapter;
and
(12) Records supplied by the school food authorities showing the
number of food safety inspections obtained by schools for each of school
years 2005-2006 through 2008-2009.
[53 FR 29147, Aug. 2, 1988, as amended at 56 FR 32948, July 17, 1991; 56
FR 55527, Oct. 28, 1991; 64 FR 50741, Sept. 20, 1999; 70 FR 34630, June
15, 2005]
Subpart E_State Agency and School Food Authority Responsibilities
Sec. 210.21 Procurement.
(a) General. State agencies and school food authorities shall comply
with the requirements of this part and 7 CFR Part 3016 or 7 CFR Part
3019, as applicable, which implement the applicable Office of Management
and Budget Circulars, concerning the procurement of all goods and
services with nonprofit school food service account funds.
(b) Contractual responsibilities. The standards contained in this
part and 7 CFR part 3015, 7 CFR part 3016 and 7 CFR part 3019, as
applicable, do not relieve the State agency or school food authority of
any contractual responsibilities under its contracts. The State agency
or school food authority is the responsible authority, without recourse
to FNS, regarding the settlement and satisfaction of all contractual and
administrative issues arising out of procurements entered into in
connection with the Program. This includes, but is not limited to source
evaluation, protests, disputes, claims, or other matters of a
contractual nature. Matters concerning violation of law are to be
referred to the local, State, or Federal authority that has proper
jurisdiction.
(c) Procedures. The State agency may elect to follow either the
State laws, policies and procedures as authorized by Sec. Sec.
3016.36(a) and 3016.37(a) of this title, or the procurement standards
for other governmental grantees and all governmental subgrantees in
accordance with Sec. 3016.36(b) through (i) of this title. Regardless
of the option selected, States must ensure that all contracts include
any clauses required by Federal statutes and executive orders and that
the requirements of Sec. 3016.60(b) and (c) of this title are followed.
A school food authority may use its own procurement procedures which
reflect applicable State and local laws and regulations, provided that
procurements made with nonprofit school food service account funds
adhere to the standards set forth in this part and Sec. Sec. 3016.36(b)
through 3016.36(i), 3016.60 and 3019.40 through 3019.48 of this title,
as applicable, and in the applicable Office of Management and Budget
Circulars. School food authority procedures must include a written code
of standards of conduct meeting the minimum standards of Sec.
3016.36(b)(3) or Sec. 3019.42 of this title, as applicable.
(1) Pre-issuance review requirement. The State agency may impose a
pre-issuance review requirement on a school food authority's proposed
procurement. The school food authority must make available, upon request
by the State agency, its procurement documents, including but not
limited to
[[Page 60]]
solicitation documents, specifications, evaluation criteria, procurement
procedures, proposed contracts and contract terms. School food
authorities shall comply with State agency requests for changes to
procurement procedures and solicitation and contract documents to ensure
that, to the State agency's satisfaction, such procedures and documents
reflect applicable procurement and contract requirements and the
requirements of this part.
(2) Prototype solicitation documents and contracts. The school food
authority must obtain the State agency's prior written approval for any
change made to prototype solicitation or contract documents before
issuing the revised solicitation documents or execution of the revised
contract.
(3) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a
procurement failing to meet the requirements of this part.
(d) Buy American.--(1) Definition of domestic commodity or product.
In this paragraph (d), the term `domestic commodity or product' means--
(i) An agricultural commodity that is produced in the United States;
and
(ii) A food product that is processed in the United States
substantially using agricultural commodities that are produced in the
United States.
(2) Requirement. (i) In general. Subject to paragraph (d)(2)(ii) of
this section, the Department shall require that a school food authority
purchase, to the maximum extent practicable, domestic commodities or
products.
(ii) Limitations. Paragraph (d)(2)(i) of this section shall apply
only to--
(A) A school food authority located in the contiguous United States;
and
(B) A purchase of domestic commodity or product for the school lunch
program under this part.
(3) Applicability to Hawaii. Paragraph (d)(2)(i) of this section
shall apply to a school food authority in Hawaii with respect to
domestic commodities or products that are produced in Hawaii in
sufficient quantities to meet the needs of meals provided under the
school lunch program under this part.
(e) Restrictions on the sale of milk. A school food authority
participating in the Program, or a person approved by a school
participating in the Program, must not directly or indirectly restrict
the sale or marketing of fluid milk (as described in paragraph(m)(1)(ii)
of this section) at any time or in any place on school premises or at
any school-sponsored event.
(f) Cost reimbursable contracts--(1) Required provisions. The school
food authority must include the following provisions in all cost
reimbursable contracts, including contracts with cost reimbursable
provisions, and in solicitation documents prepared to obtain offers for
such contracts:
(i) Allowable costs will be paid from the nonprofit school food
service account to the contractor net of all discounts, rebates and
other applicable credits accruing to or received by the contractor or
any assignee under the contract, to the extent those credits are
allocable to the allowable portion of the costs billed to the school
food authority;
(ii)(A) The contractor must separately identify for each cost
submitted for payment to the school food authority the amount of that
cost that is allowable (can be paid from the nonprofit school food
service account) and the amount that is unallowable (cannot be paid from
the nonprofit school food service account); or
(B) The contractor must exclude all unallowable costs from its
billing documents and certify that only allowable costs are submitted
for payment and records have been established that maintain the
visibility of unallowable costs, including directly associated costs in
a manner suitable for contract cost determination and verification;
(iii) The contractor's determination of its allowable costs must be
made in compliance with the applicable Departmental and Program
regulations and Office of Management and Budget cost circulars;
(iv) The contractor must identify the amount of each discount,
rebate and other applicable credit on bills and invoices presented to
the school food authority for payment and individually identify the
amount as a discount, rebate, or in the case of other applicable
credits, the nature of the credit. If approved by the State agency, the
school
[[Page 61]]
food authority may permit the contractor to report this information on a
less frequent basis than monthly, but no less frequently than annually;
(v) The contractor must identify the method by which it will report
discounts, rebates and other applicable credits allocable to the
contract that are not reported prior to conclusion of the contract; and
(vi) The contractor must maintain documentation of costs and
discounts, rebates and other applicable credits, and must furnish such
documentation upon request to the school food authority, the State
agency, or the Department.
(2) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a cost
reimbursable contract that fails to include the requirements of this
section, nor may any expenditure be made from the nonprofit school food
service account that permits or results in the contractor receiving
payments in excess of the contractor's actual, net allowable costs.
[53 FR 29147, Aug. 2, 1988, as amended at 64 FR 50741, Sept. 20, 1999;
70 FR 70033, Nov. 21, 2005; 71 FR 39516, July 13, 2006; 72 FR 61491,
Oct. 31, 2007]
Sec. 210.22 Audits.
(a) General. Unless otherwise exempt, audits at the State and school
food authority levels shall be conducted in accordance with Office of
Management and Budget Circular A-133 and the Department's implementing
regulations at 7 CFR part 3052. For availability of the OMB Circular
mentioned in this paragraph, please refer to 5 CFR 1310.3.
(b) Audit procedure. These requirements call for organization-wide
financial and compliance audits to ascertain whether financial
operations are conducted properly; financial statements are presented
fairly; recipients and subrecipients comply with the laws and
regulations that affect the expenditures of Federal funds; recipients
and subrecipients have established procedures to meet the objectives of
federally assisted programs; and recipients and subrecipients are
providing accurate and reliable information concerning grant funds.
States and school food authorities shall use their own procedures to
arrange for and prescribe the scope of independent audits, provided that
such audits comply with the requirements set forth in 7 CFR part 3015.
[53 FR 29147, Aug. 2, 1988, as amended at 71 FR 39516, July 13, 2006]
Sec. 210.23 Other responsibilities.
(a) Free and reduced price lunches and meal supplements. State
agencies and school food authorities shall ensure that lunches and meal
supplements are made available free or at a reduced price to all
children who are determined by the school food authority to be eligible
for such benefits. The determination of a child's eligibility for free
or reduced price lunches and meal supplements is to be made in
accordance with 7 CFR part 245.
(b) Civil rights. In the operation of the Program, no child shall be
denied benefits or be otherwise discriminated against because of race,
color, national origin, age, sex, or disability. State agencies and
school food authorities shall comply with the requirements of: Title VI
of the Civil Rights Act of 1964; title IX of the Education Amendments of
1972; section 504 of the Rehabilitation Act of 1973; the Age
Discrimination Act of 1975; Department of Agriculture regulations on
nondiscrimination (7 CFR parts 15, 15a, and 15b); and FNS Instruction
113-6.
(c) Retention of records. State agencies and school food authorities
may retain necessary records in their original form or on microfilm.
State agency records shall be retained for a period of 3 years after the
date of submission of the final Financial Status Report for the fiscal
year. School food authority records shall be retained for a period of 3
years after submission of the final Claim for Reimbursement for the
fiscal year. In either case, if audit findings have not been resolved,
the records shall be retained beyond the 3-year period as long as
required for the resolution of the issues raised by the audit.
(d) Data collection related to school food authorities. (1) Each
State agency must collect data related to school food authorities that
have an agreement with the State agency to participate in the program
for each of Federal fiscal years 2006 through 2009, including
[[Page 62]]
those school food authorities that participated only for part of the
fiscal year. Such data shall include:
(i) The name of each school food authority;
(ii) The city in which each participating school food authority was
headquartered and the name of the state;
(iii) The amount of funds provided to the participating
organization, i.e., the amount of federal funds reimbursed to each
participating school food authority; and
(iv) The type of participating organization, e.g., government
agency, educational institution, non-profit organization/secular, non-
profit organization/faith-based, and ``other.''
(2) On or before August 31, 2007, and each subsequent year through
2010, State agencies must report to FNS data as specified in paragraph
(d)(1) of this section for the prior Federal fiscal year. State agencies
must submit this data in a format designated by FNS.
[53 FR 29147, Aug. 2, 1988, as amended at 58 FR 42489, Aug. 10, 1993; 64
FR 50741, Sept. 20, 1999; 72 FR 24183, May 2, 2007]
Subpart F_Additional Provisions
Sec. 210.24 Withholding payments.
In accordance with Departmental regulations at Sec. 3016.43 and
Sec. 3019.62 of this title, the State agency shall withhold Program
payments, in whole or in part, to any school food authority which has
failed to comply with the provisions of this part. Program payments
shall be withheld until the school food authority takes corrective
action satisfactory to the State agency, or gives evidence that such
corrective action will be taken, or until the State agency terminates
the grant in accordance with Sec. 210.25 of this part. Subsequent to
the State agency's acceptance of the corrective actions, payments will
be released for any lunches served in accordance with the provisions of
this part during the period the payments were withheld.
[56 FR 32948, July 17, 1991, as amended at 71 FR 39516, July 13, 2006;
72 FR 61492, Oct. 31, 2007]
Sec. 210.25 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed
to comply with the provisions of this part, or with FNS guidelines and
instructions, FNS may suspend or terminate the Program in whole, or in
part, or take any other action as may be available and appropriate. A
State agency may also terminate the Program by mutual agreement with
FNS. FNS and the State agency shall comply with the provisions of 7 CFR
part 3016 concerning grant suspension, termination and closeout
procedures. Furthermore, the State agency shall apply these provisions,
or the parallel provisions of 7 CFR part 3019, as applicable, to
suspension or termination of the Program in school food authorities.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56 FR 32948, July 17, 1991,
and amended at 71 FR 39516, July 13, 2006]
Sec. 210.26 Penalties.
Whoever embezzles, willfully misapplies, steals, or obtains by fraud
any funds, assets, or property provided under this part whether received
directly or indirectly from the Department, shall if such funds, assets,
or property are of a value of $100 or more, be fined no more than
$25,000 or imprisoned not more than 5 years or both; or if such funds,
assets, or property are of a value of less than $100, be fined not more
than $1,000 or imprisoned not more than 1 year or both. Whoever
receives, conceals, or retains for personal use or gain, funds, assets,
or property provided under this part, whether received directly or
indirectly from the Department, knowing such funds, assets, or property
have been embezzled, willfully misapplied, stolen, or obtained by fraud,
shall be subject to the same penalties.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56 FR 32948, July 17, 1991,
as amended at 64 FR 50741, Sept. 20, 1999]
Sec. 210.27 Educational prohibitions.
In carrying out the provisions of the Act, the Department shall not
impose any requirements with respect to teaching personnel, curriculum,
instructions, methods of instruction, or
[[Page 63]]
materials of instruction in any school as a condition for participation
in the Program.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56 FR 32948, July 17, 1991,
as amended at 64 FR 50741, Sept. 20, 1999]
Sec. 210.28 Pilot project exemptions.
Those State agencies or school food authorities selected for the
pilot projects mandated under section 18(d) of the Act may be exempted
by the Department from some or all of the counting and free and reduced
price application requirements of this part and 7 CFR part 245, as
necessary, to conduct an approved pilot project. Additionally, those
schools selected for pilot projects that also operate the School
Breakfast Program (7 CFR part 220) and/or the Special Milk Program for
Children (7 CFR part 215), may be exempted from the counting and free
and reduced price application requirements mandated under these
Programs. The Department shall notify the appropriate State agencies and
school food authorities of its determination of which requirements are
exempted after the Department's selection of pilot projects.
[55 FR 41504, Oct. 12, 1990. Redesignated at 56 FR 32948, July 17, 1991.
Further redesignated at 64 FR 50741, Sept. 20, 1999]
Sec. 210.29 Management evaluations.
(a) Management evaluations. FNS will conduct a comprehensive
management evaluation of each State agency's administration of the
National School Lunch Program.
(b) Basis for evaluations. FNS will evaluate all aspects of State
agency management of the Program using tools such as State agency
reviews as required under Sec. 210.18 or Sec. 210.18a of this part;
reviews conducted by FNS in accordance with Sec. 210.18 of this part;
FNS reviews of school food authorities and schools authorized under
Sec. 210.19(a)(4) of this part; follow-up reviews and actions taken by
the State agency to correct violations found during reviews; FNS
observations of State agency reviews; and audit reports.
(c) Scope of management evaluations. The management evaluation will
determine whether the State agency has taken steps to ensure school food
authority compliance with Program regulations, and whether the State
agency is administering the Program in accordance with Program
requirements and good management practices.
(1) Local compliance. FNS will evaluate whether the State agency has
actively taken steps to ensure that school food authorities comply with
the provisions of this part.
(2) State agency compliance. FNS will evaluate whether the State
agency has fulfilled its State level responsibilities, including, but
not limited to the following areas: use of Federal funds; reporting and
recordkeeping; agreements with school food authorities; review of food
service management company contracts; review of the claims payment
process; implementation of the State agency's monitoring
responsibilities; initiation and completion of corrective action;
recovery of overpayments; disallowance of claims that are not properly
payable; withholding of Program payments; oversight of school food
authority procurement activities; training and guidance activities;
civil rights; and compliance with the State Administrative Expense Funds
requirements as specified in 7 CFR part 235.
(d) School food authority reviews. FNS will examine State agency
administration of the Program by reviewing local Program operations.
When conducting these reviews under paragraph (d)(2) of this section,
FNS will follow all the administrative review requirements specified in
Sec. 210.18(a)-(h) of this part. When FNS conducts reviews, the
findings will be sent to the State agency to ensure all the needed
follow-up activity occurs. The State agency will, in all cases, be
invited to accompany FNS reviewers.
(1) Observation of State agency reviews. FNS may observe the State
agency conduct of any review and/or any follow-up review as required
under this part. At State agency request, FNS may assist in the conduct
of the review.
(2) Section 210.18 reviews. FNS will conduct administrative reviews
or follow-up reviews in accordance with Sec. 210.18(a)-(h) of this part
which will count toward meeting the State agency responsibilities
identified under Sec. 210.18 of this part.
[[Page 64]]
(3) School food authority appeal of FNS findings. When
administrative or follow-up review activity conducted by FNS in
accordance with the provisions of paragraph (d)(2) of this section
results in the denial of all or part of a Claim for Reimbursement or
withholding of payment, a school food authority may appeal the FNS
findings by filing a written request with the Chief, Administrative
Review Branch, U.S. Department of Agriculture, Food and Nutrition
Service, 3101 Park Center Drive, Alexandria, Virginia, 22302, in
accordance with the appeal procedures specified in this paragraph:
(i) The written request for a review of the record shall be
postmarked within 15 calendar days of the date the appellant received
the notice of the denial of all or a part of the Claim for Reimbursement
or withholding payment and the envelope containing the request shall be
prominently marked ``REQUEST FOR REVIEW''. FNS will acknowledge the
receipt of the request for appeal within 10 calendar days. The
acknowledgement will include the name and address of the FNS
Administrative Review Officer (ARO) reviewing the case. FNS will also
notify the State agency of the request for appeal.
(ii) The appellant may refute the action specified in the notice in
person and by written documentation to the ARO. In order to be
considered, written documentation must be filed with the ARO not later
than 30 calendar days after the appellant received the notice. The
appellant may retain legal counsel, or may be represented by another
person. A hearing shall be held by the ARO in addition to, or in lieu
of, a review of written information submitted by the appellant only if
the appellant so specifies in the letter of request for review. Failure
of the appellant school food authority's representative to appear at a
scheduled hearing shall constitute the appellant school food authority's
waiver of the right to a personal appearance before the ARO, unless the
ARO agrees to reschedule the hearing. A representative of FNS shall be
allowed to attend the hearing to respond to the appellant's testimony
and to answer questions posed by the ARO;
(iii) If the appellant has requested a hearing, the appellant shall
be provided with a least 10 calendar days advance written notice, sent
by certified mail, return receipt requested, of the time, date, and
place of the hearing;
(iv) Any information on which FNS's action was based shall be
available to the appellant for inspection from the date of receipt of
the request for review;
(v) The ARO shall be an independent and impartial official other
than, and not accountable to, any person authorized to make decisions
that are subject to appeal under the provisions of this section;
(vi) The ARO shall make a determination based on information
provided by FNS and the appellant, and on Program regulations;
(vii) Within 60 calendar days of the receipt of the request for
review, by written notice, sent by certified mail, return receipt
requested, the ARO shall inform FNS, the State agency and the appellant
of the determination of the ARO. The final determination shall take
effect upon receipt of the written notice of the final decision by the
school food authority;
(viii) The action being appealed shall remain in effect during the
appeal process;
(ix) The determination by the ARO is the final administrative
determination to be afforded to the appellant.
(4) Coordination with State agency. FNS will coordinate school food
authority selection with the State agency to ensure that no unintended
overlap exists and to ensure reviews are conducted in a consistent
manner.
(e) Management evaluation findings. FNS will consider the results of
all its review activity within each State, including school food
authority reviews, in performing management evaluations and issuing
management evaluation reports. FNS will communicate the findings of the
management evaluation to appropriate State agency personnel in an exit
conference. Subsequent to the exit conference, the State agency will be
notified in writing of the management evaluation findings and any needed
corrective actions or fiscal sanctions in accordance with the provisions
[[Page 65]]
Sec. 210.25 of this part and/or 7 CFR part 235.
[56 FR 32949, July 17, 1991, as amended at 57 FR 38586, Aug. 26, 1992.
Redesignated at 64 FR 50741, Sept. 20, 1999]
Sec. 210.30 Regional office addresses.
School food authorities desiring information concerning the Program
should write to their State educational agency or to the appropriate
Regional Office of FNS as indicated below:
(a) In the States of Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, and Vermont: Northeast Regional
Office, FNS, U.S. Department of Agriculture, 10 Causeway Street, Room
501, Boston, Massachusetts 02222-1065.
(b) In the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee: Southeast
Regional Office, FNS, U.S. Department of Agriculture, 61 Forsyth Street
SW, Room 8T36, Atlanta, Georgia 30303.
(c) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio,
and Wisconsin: Midwest Regional Office, FNS, U.S. Department of
Agriculture, 77 West Jackson Boulevard, 20th Floor, Chicago, Illinois
60604-3507.
(d) In the States of Arkansas, Louisiana, New Mexico, Oklahoma, and
Texas: Southwest Regional Office, FNS, U.S. Department of Agriculture,
1100 Commerce Street, Room 5-C-30, Dallas, Texas 75242.
(e) In the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon, the Commonwealth of the Northern
Mariana Islands, and Washington: Western Regional Office, FNS, U.S.
Department of Agriculture, 550 Kearny Street, Room 400, San Francisco,
California 94108.
(f) In the States of Delaware, District of Columbia, Maryland, New
Jersey, Pennsylvania, Puerto Rico, Virginia, Virgin Islands, and West
Virginia: Mid-Atlantic Regional Office, FNS, U.S. Department of
Agriculture, 300 Corporate Boulevard, Robbinsville, New Jersey 08691-
1598.
(g) In the States of Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Utah, and Wyoming: Mountain Plains
Regional Office, FNS, U.S. Department of Agriculture, 1244 Speer
Boulevard, Suite 903, Denver, Colorado 80204.
[53 FR 29147, Aug. 2, 1988. Redesignated at 55 FR 41503, Oct. 12, 1990.
Further redesignated at 56 FR 32948, July 17, 1991. Further redesignated
at 64 FR 50741, Sept. 20, 1999; 65 FR 12434, Mar. 9, 2000]
Sec. 210.31 OMB control numbers.
The following control numbers have been assigned to the information
collection requirements in 7 CFR part 210 by the Office of Management
and Budget pursuant to the Paperwork Reduction Act of 1980, Pub. L. 96-
511.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control No.
------------------------------------------------------------------------
210.3(b)............................................... 0584-0327
210.5(d)............................................... 0584-0006
210.5(d)(1)............................................ 0584-0002
210.5(d)(2)............................................ 0584-0341
210.5(d)(3)............................................ 0584-0341
210.6(b)............................................... 0584-0006
210.8.................................................. 0584-0006
0584-0284
210.9.................................................. 0584-0006
0584-0026
0584-0329
210.10(b).............................................. 0584-0006
210.10(i)(1)........................................... 0584-0006
210.14(c).............................................. 0584-0006
210.16................................................. 0584-0006
210.17................................................. 0584-0006
210.17(g).............................................. 0584-0075
210.18................................................. 0584-0006
210.19................................................. 0584-0006
210.22................................................. 0584-0006
210.23(c).............................................. 0584-0006
210.24................................................. 0584-0006
210.27................................................. 0584-0006
------------------------------------------------------------------------
[53 FR 29147, Aug. 2, 1990. Redesignated at 55 FR 41503, Oct. 12, 1990.
Further redesignated at 56 FR 32948, July 17, 1991. Further redesignated
at 64 FR 50741, Sept. 20, 1999]
Sec. Appendix A to Part 210--Alternate Foods for Meals
I. Enriched Macaroni Products with Fortified Protein
1. Schools may utilize the enriched macaroni products with fortified
protein defined in paragraph 3 as a food item in meeting the meal
requirements of this part under the following terms and conditions:
(a) One ounce (28.35 grams) of a dry enriched macaroni product with
fortified protein may be used to meet not more than one-half of the meat
or meat alternate requirements specified in Sec. 210.10, when served in
combination with 1 or more ounces (28.35 grams) of cooked meat, poultry,
fish, or cheese. The size of servings of the cooked combination may be
adjusted for various age groups.
[[Page 66]]
(b) Only enriched macaroni products with fortified protein that bear
a label containing substantially the following legend shall be so
utilized: ``One ounce (28.35 grams) dry weight of this product meets
one-half of the meat or meat alternate requirements of lunch or supper
of the USDA child nutrition programs when served in combination with 1
or more ounces (28.35 grams) of cooked meat, poultry, fish, or cheese.
In those States where State or local law prohibits the wording
specified, a legend acceptable to both the State or local authorities
and FNS shall be substituted.''
(c) Enriched macaroni product may not be used for infants under 1
year of age.
2. Only enriched macaroni products with fortified protein that have
been accepted by FNS for use in the USDA Child Nutrition Programs may be
labeled as provided in paragraph 1(b) of this appendix. Manufacturers
seeking acceptance of their product shall furnish FNS a chemical
analysis, the Protein Digestibility-Corrected Amino Acid Score (PDCAAS),
and such other pertinent data as may be requested by FNS, except that
prior to November 7, 1994, manufacturers may submit protein efficiency
ratio analysis in lieu of the PDCAAS. This information is to be
forwarded to: Director, Nutrition and Technical Services Division, Food
and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center
Drive, room 607, Alexandria, VA 22302. All laboratory analyses are to be
performed by independent or other laboratories acceptable to FNS. (FNS
prefers an independent laboratory.) All laboratories shall retain the
``raw'' laboratory data for a period of 1 year. Such information shall
be made available to FNS upon request. Manufacturers must notify FNS if
there is a change in the protein portion of their product after the
original testing. Manufacturers who report such a change in protein in a
previously approved product must submit protein data in accordance with
the method specified in this paragraph.
3. The product should not be designed in such a manner that would
require it to be classified as a Dietary Supplement as described by the
Food and Drug Administration (FDA) in 21 CFR part 105. To be accepted by
FNS, enriched macaroni products with fortified protein must conform to
the following requirements:
(a)(1) Each of these foods is produced by drying formed units of
dough made with one or more of the milled wheat ingredients designated
in 21 CFR 139.110(a) and 139.138(a), and other ingredients to enable the
finished food to meet the protein requirements set out in paragraph
3.(a)(2)(i) under Enriched Macaroni Products with Fortified Protein in
this appendix. Edible protein sources, including food grade flours or
meals made from nonwheat cereals or from oilseeds, may be used. Vitamin
and mineral enrichment nutrients are added to bring the food into
conformity with the requirements of paragraph (b) under Enriched
Macaroni Products with Fortified Protein in this appendix. Safe and
suitable ingredients, as provided for in paragraph (c) under Enriched
Macaroni Products with Fortified Protein in this appendix, may be added.
The proportion of the milled wheat ingredient is larger than the
proportion of any other ingredient used.
(2) Each such finished food, when tested by the methods described in
the pertinent sections of ``Official Methods of Analysis of the AOAC
International,'' (formerly the Association of Official Analytical
Chemists), 15th Ed. (1990) meets the following specifications. This
publication is incorporated by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be obtained from the AOAC
International, 2200 Wilson Blvd., suite 400, Arlington, VA 22201-3301.
This publication may be examined at the Food and Nutrition Service,
Nutrition and Technical Services Division, 3101 Park Center Drive, room
607, Alexandria, Virginia 22302 or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html.
(i) The protein content (Nx6.25) is not less than 20 percent by
weight (on a 13 percent moisture basis) as determined by the appropriate
method of analysis in the AOAC manual cited in (a)(2) under Enriched
Macaroni Products with Fortified Protein in this appendix. The protein
quality is not less than 95 percent that of casein as determined on a
dry basis by the PDCAAS method as described below:
(A) The PDCAAS shall be determined by the methods given in sections
5.4.1, 7.2.1. and 8.0 as described in ``Protein Quality Evaluation,
Report of the Joint FAO/WHO Expert Consultation on Protein Quality
Evaluation,'' Rome, 1990, as published by the Food and Agriculture
Organization (FAO) of the United Nations/World Health Organization
(WHO). This report is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies of this report may be obtained
from the Nutrition and Technical Services Division, Food and Nutrition
Service, 3101 Park Center Drive, room 607, Alexandria, Virginia 22302.
This report may also be inspected at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html.
(B) The standard used for assessing protein quality in the PDCAAS
method is the amino acid scoring pattern established by FAO/WHO and
United Nations University (UNU)
[[Page 67]]
in 1985 for preschool children 2 to 5 years of age which has been
adopted by the National Academy of Sciences, Recommended Dietary
Allowances (RDA), 1989.
(C) To calculate the PDCAAS for an individual food, the test food
must be analyzed for proximate analysis and amino acid composition
according to AOAC methods.
(D) The PDCAAS may be calculated using FDA's limited data base of
published true digestibility values (determined using humans and rats).
The true digestibility values contained in the WHO/FAO report referenced
in paragraph 3.(a)(2)(i)(A) under Enriched Macaroni Products with
Fortified Protein in this appendix may also be used. If the
digestibility of the protein is not available from these sources it must
be determined by a laboratory according to methods in the FAO/WHO report
(sections 7.2.1 and 8.0).
(E) The most limiting essential amino acid (that is, the amino acid
that is present at the lowest level in the test food compared to the
standard) is identified in the test food by comparing the levels of
individual amino acids in the test food with the 1985 FAO/WHO/UNU
pattern of essential amino acids established as a standard for children
2 to 5 years of age.
(F) The value of the most limiting amino acid (the ratio of the
amino acid in the test food over the amino acid value from the pattern)
is multiplied by the percent of digestibility of the protein. The
resulting number is the PDCAAS.
(G) The PDCAAS of food mixtures must be calculated from data for the
amino acid composition and digestibility of the individual components by
means of a weighted average procedure. An example for calculating a
PDCAAS for a food mixture of varying protein sources is shown in section
8.0 of the FAO/WHO report cited in paragraph 3.(a)(2)(i)(A) under
Enriched Macaroni Products with Fortified Protein in this appendix.
(H) For the purpose of this regulation, each 100 grams of the
product (on a 13 percent moisture basis) must contain protein in amounts
which is equivalent to that provided by 20 grams of protein with a
quality of not less than 95 percent casein. The equivalent grams of
protein required per 100 grams of product (on a 13 percent moisture
basis) would be determined by the following equation:
[GRAPHIC] [TIFF OMITTED] TR07OC94.022
X=grams of protein required per 100 grams of product
a=20 grams (amount of protein if casein)
b=.95 [95% x 1 (PDCAAS of casein)
c=PDCAAS for protein used in formulation
(ii) The total solids content is not less than 87 percent by weight
as determined by the methods described in the ``Official Methods of
Analysis of the AOAC International'' cited in paragraph (a)(2) under
Enriched Macaroni Products with Fortified Protein in this appendix.
(b)(1) Each pound of food covered by this section shall contain 5
milligrams of thiamine, 2.2 milligrams of riboflavin, 34 milligrams of
niacin or niacinamide, and 16.5 milligrams of iron.
(2) Each pound of such food may also contain 625 milligrams of
calcium.
(3) Only harmless and assimilable forms of iron and calcium may be
added. The enrichment nutrients may be added in a harmless carrier used
only in a quantity necessary to effect a uniform distribution of the
nutrients in the finished food. Reasonable overages, within the limits
of good manufacturing practice, may be used to assure that the
prescribed levels of the vitamins and mineral(s) in paragraphs (b)(1)
and (2) under Enriched Macaroni Products with Fortified Protein in this
appendix are maintained throughout the expected shelf life of the food
under customary conditions of distribution.
(c) Ingredients that serve a useful purpose such as to fortify the
protein or facilitate production of the food are the safe and suitable
ingredients referred to in paragraph (a) under Enriched Macaroni
Products with Fortified Protein in this appendix. This does not include
color additives, artificial flavorings, artificial sweeteners, chemical
preservatives, or starches. Ingredients deemed suitable for use by this
paragraph are added in amounts that are not in excess of those
reasonably required to achieve their intended purposes. Ingredients are
deemed to be safe if they are not food additives within the meaning of
section 201(s) of the Federal Food, Drug and Cosmetic Act, or in case
they are food additives if they are used in conformity with regulations
established pursuant to section 409 of the act.
(d)(1) The name of any food covered by this section is ``Enriched
Wheat ---------------- Macaroni Product with Fortified Protein'', the
blank being filled in with appropriate word(s) such as ``Soy'' to show
the source of any flours or meals used that were made from non-wheat
cereals or from oilseeds. In lieu of the words ``Macaroni Product'' the
words ``Macaroni'', ``Spaghetti'', or ``Vermicelli'' as appropriate, may
be used if the units conform in shape and size to the requirements of 21
CFR 139.110 (b), (c), or (d).
(2) When any ingredient not designated in the part of the name
prescribed in paragraph (d)(1) under Enriched Macaroni Products with
Fortified Protein in this appendix, is added in such proportion as to
contribute 10 percent or more of the quantity of protein contained in
the finished food, the name shall include the statement ``Made with ----
------------'', the blank being filled in with the name of each such
ingredient, e.g. ``Made with nonfat milk''.
[[Page 68]]
(3) When, in conformity with paragraph (d)(1) or (d)(2) under
Enriched Macaroni Products with Fortified Protein in this appendix, two
or more ingredients are listed in the name, their designations shall be
arranged in descending order of predominance by weight.
(4) If a food is made to comply with a section of 21 CFR part 139,
but also meets the compositional requirements of the Enriched Macaroni
with Fortified Protein Appendix, it may alternatively bear the name set
out in the other section.
(e) Each ingredient used shall declare its common name as required
by the applicable section of 21 CFR part 101. In addition, the
ingredients statement shall appear in letters not less than one half the
size of that required by 21 CFR 101.105 for the declaration of net
quantity of contents, and in no case less than one-sixteenth of an inch
in height.
II. Alternate Protein Products
A. What Are the Criteria for Alternate Protein Products Used in the
National School Lunch Program?
1. An alternate protein product used in meals planned under the
food-based menu planning approaches in Sec. 210.10(k), must meet all of
the criteria in this section.
2. An alternate protein product whether used alone or in combination
with meat or other meat alternates must meet the following criteria:
a. The alternate protein product must be processed so that some
portion of the non-protein constituents of the food is removed. These
alternate protein products must be safe and suitable edible products
produced from plant or animal sources.
b. The biological quality of the protein in the alternate protein
product must be at least 80 percent that of casein, determined by
performing a Protein Digestibility Corrected Amino Acid Score (PDCAAS).
c. The alternate protein product must contain at least 18 percent
protein by weight when fully hydrated or formulated. (``When hydrated or
formulated'' refers to a dry alternate protein product and the amount of
water, fat, oil, colors, flavors or any other substances which have been
added).
d. Manufacturers supplying an alternate protein product to
participating schools or institutions must provide documentation that
the product meets the criteria in paragraphs A2. a through c of this
appendix.
e. Manufacturers should provide information on the percent protein
contained in the dry alternate protein product and on an as prepared
basis.
f. For an alternate protein product mix, manufacturers should
provide information on:
(1) the amount by weight of dry alternate protein product in the
package;
(2) hydration instructions; and
(3) instructions on how to combine the mix with meat or other meat
alternates.
B. How Are Alternate Protein Products Used in the National School Lunch
Program?
1. Schools, institutions, and service institutions may use alternate
protein products to fulfill all or part of the meat/meat alternate
component discussed in Sec. 210.10.
2. The following terms and conditions apply:
a. The alternate protein product may be used alone or in combination
with other food ingredients. Examples of combination items are beef
patties, beef crumbles, pizza topping, meat loaf, meat sauce, taco
filling, burritos, and tuna salad.
b. Alternate protein products may be used in the dry form
(nonhydrated), partially hydrated or fully hydrated form. The moisture
content of the fully hydrated alternate protein product (if prepared
from a dry concentrated form) must be such that the mixture will have a
minimum of 18 percent protein by weight or equivalent amount for the dry
or partially hydrated form (based on the level that would be provided if
the product were fully hydrated).
C. How Are Commercially Prepared Products Used in the National School
Lunch Program?
Schools, institutions, and service institutions may use a
commercially prepared meat or meat alternate product combined with
alternate protein products or use a commercially prepared product that
contains only alternate protein products.
[51 FR 34874, Sept. 30, 1986; 51 FR 41295, Nov. 14, 1986, as amended at
53 FR 29164, Aug. 2, 1988; 59 FR 51086, Oct. 7, 1994; 60 FR 31216; June
13, 1995; 61 FR 37671, July 19, 1996; 65 FR 12434, Mar. 9, 2000; 65 FR
26912, May 9, 2000; 69 FR 18803, Apr. 9, 2004]
Sec. Appendix B to Part 210--Categories of Foods of Minimal Nutritional
Value
(a) Foods of minimal nutritional value--Foods of minimal nutritional
value are:
(1) Soda Water--A class of beverages made by absorbing carbon
dioxide in potable water. The amount of carbon dioxide used is not less
than that which will be absorbed by the beverage at a pressure of one
atmosphere and at a temperature of 60[deg] F. It either contains no
alcohol or only such alcohol, not in excess of 0.5 percent by weight of
the finished beverage, as is contributed by the flavoring ingredient
used. No product shall be excluded from this definition because it
contains artificial sweeteners or discrete nutrients added to the food
such as vitamins, minerals and protein.
[[Page 69]]
(2) Water Ices--As defined by 21 CFR 135.160 Food and Drug
Administration Regulations except that water ices which contain fruit or
fruit juices are not included in this definition.
(3) Chewing Gum--Flavored products from natural or synthetic gums
and other ingredients which form an insoluble mass for chewing.
(4) Certain Candies--Processed foods made predominantly from
sweeteners or artifical sweeteners with a variety of minor ingredients
which characterize the following types:
(i) Hard Candy--A product made predominantly from sugar (sucrose)
and corn syrup which may be flavored and colored, is characterized by a
hard, brittle texture, and includes such items as sour balls, fruit
balls, candy sticks, lollipops, starlight mints, after dinner mints,
sugar wafers, rock candy, cinnamon candies, breath mints, jaw breakers
and cough drops.
(ii) Jellies and Gums--A mixture of carbohydrates which are combined
to form a stable gelatinous system of jelly-like character, and are
generally flavored and colored, and include gum drops, jelly beans,
jellied and fruit-flavored slices.
(iii) Marshmallow Candies--An aerated confection composed as sugar,
corn syrup, invert sugar, 20 percent water and gelatin or egg white to
which flavors and colors may be added.
(iv) Fondant--A product consisting of microscopic-sized sugar
crystals which are separated by thin film of sugar and/or invert sugar
in solution such as candy corn, soft mints.
(v) Licorice--A product made predominantly from sugar and corn syrup
which is flavored with an extract made from the licorice root.
(vi) Spun Candy--A product that is made from sugar that has been
boiled at high temperature and spun at a high speed in a special
machine.
(vii) Candy Coated Popcorn--Popcorn which is coated with a mixture
made predominantly from sugar and corn syrup.
(b) Petitioning Procedures--Reconsideration of the list of foods of
minimal nutritional value identified in paragraph (a) of this section
may be pursued as follows:
(1) Any person may submit a petition to FNS requesting that an
individual food be exempted from a category of foods of minimal
nutritional value listed in paragraph (a). In the case of artificially
sweetened foods, the petition must include a statement of the percent of
Reference Daily Intake (RDI) for the eight nutrients listed in Sec.
210.11(a)(2) ``Foods of minimal nutritional value,'' that the food
provides per serving and the petitioner's source of this information. In
the case of all other foods, the petition must include a statement of
the percent of RDI for the eight nutrients listed in Sec. 210.11(a)(2)
``Foods of minimal nutritional value,'' that the food provides per
serving and per 100 calories and the petitioner's source of this
information. The Department will determine whether or not the individual
food is a food of minimal nutritional value as defined in Sec.
210.11(a)(2) and will inform the petitioner in writing of such
determination, and the public by notice in the Federal Register as
indicated below under paragraph (b)(3) of this section. In determining
whether an individual food is a food of minimal nutritional value,
discrete nutrients added to the food will not be taken into account.
(2) Any person may submit a petition to FNS requesting that foods in
a particular category of foods be classified as foods of minimal
nutritional value as defined in Sec. 210.11(a)(2). The petition must
identify and define the food category in easily understood language,
list examples of the food contained in the category and include a list
of ingredients which the foods in that category usually contain. If,
upon review of the petition, the Department determines that the foods in
that category should not be classified as foods of minimal nutritional
value, the petitioners will be so notified in writing. If, upon review
of the petition, the Department determines that there is a substantial
likelihood that the foods in that category should be classified as foods
of minimal nutritional value as defined in Sec. 210.11(a)(2), the
Department shall at that time inform the petitioner. In addition, the
Department shall publish a proposed rule restricting the sale of foods
in that category, setting forth the reasons for this action, and
soliciting public comments. On the basis of comments received within 60
days of publication of the proposed rule and other available
information, the Department will determine whether the nutrient
composition of the foods indicates that the category should be
classified as a category of foods of minimal nutritional value. The
petitioner shall be notified in writing and the public shall be notified
of the Department's final determination upon publication in the Federal
Register as indicated under paragraph (b)(3) of this section.
(3) By May 1 and November 1 of each year, the Department will amend
appendix B to exclude those individual foods identified under paragraph
(b)(1) of this section, and to include those categories of foods
identified under paragraph (b)(2) of this section, provided, that there
are necessary changes. The schedule for amending appendix B is as
follows:
------------------------------------------------------------------------
Publication
Actions for publication ---------------------------------------
May November
------------------------------------------------------------------------
Deadline for receipt of Nov. 15........... May 15.
petitions by USDA.
[[Page 70]]
USDA to notify petitioners of Feb. 1............ Aug. 1.
results of Departmental review
and publish proposed rule (if
applicable).
60 Day comment period........... Feb. 1 through Aug. 1 through
Apr. 1. Oct. 1.
Public notice of amendment of May 1............. Nov. 1.
appendix B by.
------------------------------------------------------------------------
(4) Written petitions should be sent to the Chief, Technical
Assistance Branch, Nutrition and Technical Services Division, FNS, USDA,
Alexandria, Virginia 22302, on or before November 15 or May 15 of each
year. Petitions must include all information specified in paragraph (b)
of this appendix and Sec. 220.12(b) (1) or (2) as appropriate.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 18465, May 1, 1989; 59
FR 23614, May 6, 1994]
Sec. Appendix C to Part 210--Child Nutrition Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service in conjunction with the Food Safety and Inspection Service
(FSIS), and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture, and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/meat alternate component of meal pattern
requirements of 7 CFR 210.10, 225.20, and 226.20 and are served in the
main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full-strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) ``CN label'' is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3 (b) and (c) below.
(b) The ``CN logo'' (as shown below) is a distinct border which is
used around the edges of a ``CN label statement'' as defined in
paragraph 3(c).
[GRAPHIC] [TIFF OMITTED] TC17SE91.000
(c) The ``CN label statement'' includes the following:
(1) The product identification number (assigned by FNS),
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10, Sec. 220.8 or Sec. 220.8a, whichever is
applicable, Sec. Sec. 225.20, and 226.20. The statement shall identify
the contribution of a specific portion of a meat/meat alternate product
toward the meat/meat alternate, bread/bread alternate, and/or vegetable/
fruit component of the meal pattern requirements. For juice drinks and
juice drink products the statement shall identify their contribution
toward the vegetable/fruit component of the meal pattern requirements,
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[[Page 71]]
[GRAPHIC] [TIFF OMITTED] TC17SE91.001
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by FNS and appropriate USDA or USDC Federal agency responsible for the
inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate, and the manufacturer's or
distributor's name and address. The inspection marking for CN labeled
non-meat, non-poultry, and non-seafood products with the exception of
juice drinks and juice drink products is established as follows:
[GRAPHIC] [TIFF OMITTED] TC17SE91.002
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program AID Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the Child Nutrition Programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10, Sec. 220.8 or Sec. 220.8a, whichever is
applicable, Sec. Sec. 225.20, and 226.20. If a State or Federal auditor
finds that a product that is CN labeled does not actually meet the meal
pattern requirements claimed on the label, the auditor will report this
finding to FNS. FNS will prepare a report of the findings and send it to
the appropriate divisions of FSIS and AMS of the USDA, National Marine
Fisheries Services of the USDC, Food and Drug Administration, or the
Department of Justice for action against the company. Any or all of the
following courses of action may be taken:
(a) The company's CN label may be revoked for a specific period of
time;
(b) The appropriate agency may pursue a misbranding or mislabeling
action against the company producing the product;
(c) The company's name will be circulated to regional FNS offices;
(d) FNS will require the food service program involved to notify the
State agency of the labeling violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program. To apply for a CN label and to
obtain additional information on CN label application procedures write
to: CN Labels, U.S. Department of Agriculture, Food and Nutrition
Service, Nutrition and Technical Services Division, 3101 Park Center
Drive, Alexandria, Virginia 22302.
[51 FR 34874, Sept. 30, 1986, as amended at 53 FR 29164, Aug. 2, 1988;
60 FR 31216, June 13, 1995; 65 FR 26912, May 9, 2000]
PART 215_SPECIAL MILK PROGRAM FOR CHILDREN--Table of Contents
Sec.
215.1 General purpose and scope.
215.2 Definitions.
215.3 Administration.
215.4 Payments of funds to States and FNSROs.
215.5 Method of payment to States.
215.6 Use of funds.
215.7 Requirements for participation.
215.8 Reimbursement payments.
215.9 Effective date for reimbursement.
215.10 Reimbursement procedures.
[[Page 72]]
215.11 Special responsibilities of State agencies.
215.12 Claims against schools or child-care institutions.
215.13 Management evaluations and audits.
215.13a Determining eligibility for free milk in child-care
institutions.
215.14 Nondiscrimination.
215.14a Procurement standards.
215.15 Withholding payments.
215.16 Suspension, termination and grant closeout procedures.
215.17 Program information.
215.18 Information collection/recordkeeping--OMB assigned control
numbers.
Authority: 42 U.S.C. 1772 and 1779.
Sec. 215.1 General purpose and scope.
This part announces the policies and prescribes the general
regulations with respect to the Special Milk Program for Children, under
the Child Nutrition Act of 1966, as amended, and sets forth the general
requirements for participation in the program. The Act reads in
pertinent part as follows:
Section 3(a)(1) There is hereby authorized to be appropriated for
the fiscal year ending June 30, 1970, and for each succeeding fiscal
year such sums as may be necessary to enable the Secretary of
Agriculture, under such rules and regulations as he may deem in the
public interest, to encourage consumption of fluid milk by children in
the United States in (A) nonprofit schools of high school grade and
under, except as provided in paragraph (2), which do not participate in
a meal service program authorized under this Act or the National School
Lunch Act, and (B) nonprofit nursery schools, child care centers,
settlement houses, summer camps, and similar nonprofit institutions
devoted to the care and training of children, which do not participate
in a meal service program authorized under this Act or the National
School Lunch Act.
(2) The limitation imposed under paragraph (1)(A) for participation
of nonprofit schools in the special milk program shall not apply to
split-session kindergarten programs conducted in schools in which
children do not have access to the meal service program operating in
schools the children attend as authorized under this Act or the National
School Lunch Act (42 U.S.C. 1751 et seq.).
(3) For the purposes of this section ``United States'' means the
fifty States, Guam, the Commonwealth of Puerto Rico, the Virgin Islands,
American Samoa, the Trust Territory of the Pacific Islands, and the
District of Columbia.
(4) The Secretary shall administer the special milk program provided
for by this section to the maximum extent practicable in the same manner
as he administered the special milk program provided for by Pub. L. 89-
642, as amended, during the fiscal year ending June 30, 1969.
(5) Any school or nonprofit child care institution which does not
participate in a meal service program authorized under this Act or the
National School Lunch Act shall receive the special milk program upon
their request.
(6) Children who qualify for free lunches under guidelines
established by the Secretary shall, at the option of the school involved
(or of the local educational agency involved in the case of a public
school) be eligible for free milk upon their request.
(7) For the fiscal year ending June 30, 1975, and for subsequent
school years, the minimum rate of reimbursement for a half-pint of milk
served in schools and other eligible institutions shall not be less than
5 cents per half-pint served to eligible children, and such minimum rate
of reimbursement shall be adjusted on an annual basis each school year
to reflect changes in the Producer Price Index for Fresh Processed Milk
published by the Bureau of Labor Statistics of the Department of Labor.
(8) Such adjustment shall be computed to the nearest one-fourth
cent.
(9) Notwithstanding any other provision of this section, in no event
shall the minimum rate of reimbursement exceed the cost to the school or
institution of milk served to children.
[52 FR 7562, Mar. 12, 1987]
Sec. 215.2 Definitions.
For the purpose of this part, the term:
7 CFR part 3015 means the Uniform Federal Assistance Regulations
published by the Department to implement certain policies applicable to
all Department programs. The applicable provisions deal with competition
for discretionary grants and cooperative agreements, costs requiring
prior approval, acknowledgement of Department support in publications
and audiovisuals produced under Department programs, intergovernmental
review of Department programs under Executive Order 12372, and certain
miscellaneous Department requirements.
7 CFR part 3016 means the Department's Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments. 7 CFR part 3016 covers requirements for awards and
subawards to State and local governmental organizations under Department
programs.
[[Page 73]]
7 CFR part 3018 means the Department's Common Rule regarding
Governmentwide New Restrictions on Lobbying. Part 3018 implements the
requirements established by section 319 of the 1990 Appropriations Act
for the Department of Interior and Related Agencies (Pub. L. 101-121).
7 CFR part 3019 means the Department's Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Non-Profit Organizations. 7 CFR part
3019 covers requirements for awards and subawards to nongovernmental,
nonprofit organizations under Department programs.
7 CFR part 3052 means the Department's regulations implementing OMB
Circular A-133, ``Audits of State, Local Governments, and Non-Profit
Organizations.'' (For availability of OMB Circulars referenced in this
definition, see 5 CFR 1310.3.)
Act means the Child Nutrition Act of 1966.
Adults means those persons not included under the definition of
children.
Applicable credits shall have the meaning established in Office of
Management and Budget Circulars A-87, C(4) and A-122, Attachment A,
A(5), respectively. For availability of OMB circulars referenced in this
definition, see 5 CFR 1310.3.
Child and Adult Care Food Program means the program authorized by
section 17 of the National School Lunch Act, as amended.
Child care institution means any nonprofit nursery school, child
care center, settlement house, summer camp, service institution
participating in the Summer Food Program for Children pursuant to part
225 of this chapter, institution participating in the Child and Adult
Care Food Program pursuant to part 226 of this chapter, or similar
nonprofit institution devoted to the care and training of children. The
term ``child care institution'' also includes a nonprofit agency to
which such institution has delegated authority for the operation of a
milk program in the institution. It does not include any institution
falling within the definition of ``School'' of this section.
Child means
(1) A person under 19 chronological years of age in a Child care
institution as defined in this section;
(2) A person under 21 chronological years of age attending a school
as defined in paragraphs (3) and (4) of the definition of School in this
section;
(3) A student of high school grade or under attending school as
defined in paragraphs (1) and (2) of the definition of School in this
section; or
(4) A student who is mentally or physically disabled as determined
by the State and who is participating in a school program established
for the mentally or physically disabled, of high school grade or under
as determined by the State educational agency in paragraphs (1) and (2)
of the definition of School in this section.
CND means the Child Nutrition Division of the Food and Nutrition
Service of the Department.
Contractor means a commercial enterprise, public or nonprofit
private organization or individual that enters into a contract with a
school food authority.
Cost of milk means the net purchase price paid by the school or
child care institution to the milk supplier for milk delivered to the
school or child care institution. This shall not include any amount paid
to the milk supplier for servicing, rental of or installment purchase of
milk service equipment.
Cost reimbursable contract means a contract that provides for
payment of incurred costs to the extent prescribed in the contract, with
or without a fixed fee.
Department means the U.S. Department of Agriculture.
Disclosure means reveal or use individual children's program
eligibility information obtained through the free milk eligibility
process for a purpose other than for the purpose for which the
information was obtained. The term refers to access, release, or
transfer of personal data about children by means of print, tape,
microfilm, microfiche, electronic communication or any other means.
Family means a group of related or nonrelated individuals, who are
not residents of an institution or boarding house, but who are living as
one economic unit.
[[Page 74]]
Fiscal year means the period of 12 calendar months beginning October
1, 1977, and each October 1 of any calendar year thereafter and ending
September 30 of the following calendar year.
Fixed fee means an agreed upon amount that is fixed at the inception
of the contract. In a cost reimbursable contract, the fixed fee includes
the contractor's direct and indirect administrative costs and profit
allocable to the contract.
FNS means the Food and Nutrition Service of the U.S. Department of
Agriculture.
FNSRO means Food and Nutrition Services Regional Offices, of the
Food and Nutrition Service of the U.S. Department of Agriculture.
Free milk means milk for which neither the child nor any member of
his family pays or is required to work in the school or child-care
institution or in its food service.
Local educational agency means a public board of education or other
public or private nonprofit authority legally constituted within a State
for either administrative control or direction of, or to perform a
service function for, public or private nonprofit elementary schools or
secondary schools in a city, county, township, school district, or other
political subdivision of a State, or for a combination of school
districts or counties that is recognized in a State as an administrative
agency for its public or private nonprofit elementary schools or
secondary schools. The term also includes any other public or private
nonprofit institution or agency having administrative control and
direction of a public or private nonprofit elementary school or
secondary school, including residential child care institutions, Bureau
of Indian Affairs schools, and educational service agencies and
consortia of those agencies, as well as the State educational agency in
a State or territory in which the State educational agency is the sole
educational agency for all public or private nonprofit schools.
Medicaid means the State medical assistance program under title XIX
of the Social Security Act (42 U.S.C. 1396 et seq.).
Milk means pasteurized fluid types of unflavored or flavored whole
milk, lowfat milk, skim milk, or cultured buttermilk which meet State
and local standards for such milk. In Alaska, Hawaii, American Samoa,
Guam, Puerto Rico, the Trust Territory of the Pacific Islands, and the
Virgin Islands, if a sufficient supply of such types of fluid milk
cannot be obtained, milk shall include reconstituted or recombined milk.
All milk should contain vitamins A and D at levels specified by the Food
and Drug Administration and consistent with State and local standards
for such milk.
National School Lunch Program means the program under which general
cash-for-food assistance and special cash assistance are made available
to schools pursuant to part 210 of this chapter.
Needy children means: (1) Children who attend schools participating
in the Program and who meet the School Food Authority's eligibility
standards for free milk approved by the State agency, or FNSRO where
applicable, under part 245 of this chapter; and (2) children who attend
child-care institutions participating in the Program and who meet the
eligibility standards for free milk approved by the State agency, or
FNSRO where applicable, under Sec. 215.13a of this part.
Nonpricing program means a program which does not sell milk to
children. This shall include any such program in which children are
normally provided milk, along with food and other services, in a school
or child-care institution financed by a tuition, boarding, camping or
other fee, or by private donations or endowments.
Nonprofit means, when applied to schools or institutions eligible
for the Program, exempt from income tax under section 501(c)(3) of the
Internal Revenue Code of 1986.
Nonprofit milk service means milk service maintained by or on behalf
of the school or child-care institution for the benefit of the children,
all of the income from which is used solely for the operation or
improvement of such milk service.
Nonprofit school food service account means the restricted account
in which all of the revenue from the nonprofit milk service maintained
for the benefit
[[Page 75]]
of children is retained and used only for the operation or improvement
of the nonprofit milk service.
OA means the Office of Audit of the United States Department of
Agriculture.
OIG means the Office of the Inspector General of the Department.
Pricing program means a program which sells milk to children. This
shall include any such program in which maximum use is made of Program
reimbursement payments in lowering, or reducing to ``zero,'' wherever
possible, the price per half pint which children would normally pay for
milk.
Program means the Special Milk Program for Children.
Reimbursement means financial assistance paid or payable to
participating schools and child care institutions for milk served to
eligible children.
School means: (1) An educational unit of high school grade or under,
recognized as part of the educational system in the State and operating
under public or nonprofit private ownership in a single building or
complex of buildings; (2) any public or nonprofit private classes of
preprimary grade when they are conducted in the aforementioned schools;
or (3) any public or nonprofit private residential child care
institution, or distinct part of such institution, which operates
principally for the care of children, and, if private, is licensed to
provide residential child care services under the appropriate licensing
code by the State or a subordinate level of government, except for
residential summer camps which participate in the Summer Food Service
Program for Children, Job Corps centers funded by the Department of
Labor, and private foster homes. The term residential child care
institutions includes, but is not limited to: Homes for the mentally,
emotionally or physically impaired, and unmarried mothers and their
infants; group homes; halfway houses; orphanages; temporary shelters for
abused children and for runaway children; long-term care facilities for
chronically ill children; and juvenile detention centers. A long-term
care facility is a hospital, skilled nursing facility, intermediate care
facility, or distinct part thereof, which is intended for the care of
children confined for 30 days or more.
School Breakfast Program means the program authorized by section 4
of the Child Nutrition Act of 1966, as amended.
School Food Authority means the governing body which is responsible
for the administration of one or more schools and which has the legal
authority to operate a milk program therein. The term ``School Food
Authority'' also includes a nonprofit agency to which such governing
body has delegated authority for the operation of a milk program in a
school.
School year means the period of 12 calendar months beginning July 1,
1977, and each July 1 of any calendar year thereafter and ending June 30
of the following calendar year.
Split-session means an educational program operating for
approximately one-half of the normal school day.
State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
State agency means the State educational agency or any other State
agency that has been designated by the Governor or other appropriate
executive or legislative authority of the State and approved by the
Department to administer the Program.
State Children's Health Insurance Program (SCHIP) means the State
medical assistance program under title XXI of the Social Security Act
(42 U.S.C. 1397aa et seq.).
Summer Food Service Program for Children means the program
authorized by section 13 of the National School Lunch Act, as amended.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766;
sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760; sec. 10(d)),
Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub. L. 95-627,
92 Stat. 3625-3626; sec. 205, Pub. L. 96-499, The Omnibus Reconciliation
Act of 1980, 94 Stat. 2599; secs. 807 and 808, Pub. L. 97-35, 95 Stat.
521-535 (42 U.S.C. 1772, 1784, 1760))
[32 FR 12587, Aug. 31, 1967]
Editorial Note: For Federal Register citations affecting Sec.
215.2, see the List of CFR Sections Affected, which appears in the
[[Page 76]]
Finding Aids section of the printed volume and on GPO Access.
Sec. 215.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program. Within FNS, CND shall be
responsible for Program administration.
(b) Within the States, to the extent practicable and permissible
under State law, responsibility for the administration of the Program in
schools and child care institutions shall be in the educational agency
of the State: Provided, however, That another State agency, upon request
by the Governor or other appropriate State executive or legislative
authority, may be approved to administer the Program in schools as
described in paragraph (3) of the definition of School in Sec. 215.2 or
in child care institutions.
(c) FNSRO shall administer the Program in any School or any Child
care institution as defined in Sec. 215.2 wherein the State agency is
not permitted by law to disburse Federal funds paid to it under the
Program; Provided, however, That FNSRO shall also administer the Program
in all other schools and child-care institutions which have been under
continuous FNS administration since October 1, 1980 unless the
administration of such schools and institutions is assumed by a State
agency. References in this part to ``FNSRO where applicable'' are to
FNSRO as the agency administering the Program to schools or child-care
institutions within certain States.
(d) Each State agency desiring to take part in the Program shall
enter into a written agreement with the Department for the
administration of the Program in the State in accordance with the
provisions of this part, 7 CFR parts 235, 245, 15, 15a, 15b and, as
applicable, 7 CFR part 3015, 7 CFR part 3016 and 7 CFR part 3019, and
with FNS Instructions. Such agreement shall cover the operation of the
Program during the period specified therein and may be extended at the
option of the Department.
(Secs. 804, 816 and 817, Pub. L. 97-35; 95 Stat. 521-535 (42 U.S.C.
1753, 1756, 1759, 1771 and 1785))
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 24, 47 FR
14133 Apr. 2, 1982; Amdt. 36, 54 FR 2989, Jan. 23, 1989; 71 FR 39516,
July 13, 2006; 72 FR 63791, Nov. 13, 2007]
Sec. 215.4 Payments of funds to States and FNSROs.
(a) For each fiscal year, the Secretary shall make payments to each
State agency at such times as he may determine from the funds
appropriated for Program reimbursement. Subject to Sec. 215.11(c)(2),
the total of these payments for each State for any fiscal year shall be
limited to the amount of reimbursement payable to School Food
Authorities and child care institutions under Sec. 215.8 of this part
for the total number of half-pints of milk served under the Program to
eligible children from October 1 to September 30.
(b) Each State agency shall be responsible for controlling Program
reimbursement payments so as to keep within the funds made available to
it, and for the timely reporting to FNS of the number of half pints of
milk actually served. The Secretary shall increase or decrease the
available level of funding by adjusting the State agency's Letter of
Credit when appropriate.
(Pub. L. 97-370, 96 Stat. 1806)
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 30, 49 FR
18986, May 4, 1984]
Sec. 215.5 Method of payment to States.
(a) Funds to be paid to any State shall be made available by means
of Letters of Credit issued by FNS in favor of the State agency. The
State agency shall:
(1) Obtain funds needed to reimburse School Food Authorities and
child-care institutions through presentation by designated State
officials of a Payment Voucher on Letter of Credit (Treasury Form GFO
7578) in accordance with procedures prescribed by FNS and approved by
the U.S. Treasury Department; (2) submit requests for funds only at such
times and in such
[[Page 77]]
amounts as will permit prompt payment of claims; (3) use the funds
received from such requests without delay for the purpose for which
drawn. Notwithstanding the foregoing provisions, if funds are made
available by Congress for the operation of the Program under a
continuing resolution, Letters of Credit shall reflect only the amount
available for the effective period of the resolution.
(b) [Reserved]
(c) The State agency shall release to FNS any Federal funds made
available to it under the Program which are unobligated at the end of
each fiscal year. Release of funds by the State agency shall be made as
soon as practicable but in no event later than 30 days following demand
by FNSRO, and shall be reflected by a related adjustment in the State
agency's Letter of Credit.
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 14, 41 FR
31174, July 27, 1976]
Sec. 215.6 Use of funds.
(a) Federal funds made available under the Program shall be used to
encourage the consumption of milk through reimbursement payments to
schools and child-care institutions in connection with the purchase and
service of milk to children in accordance with the provisions of this
part: Provided, however, That, with the approval of FNS, any State
agency, or FNSRO where applicable, may reserve for use in carrying out
special developmental projects an amount equal to not more than 1 per
centum of the Federal funds so made available for any fiscal year.
(b) Whoever embezzles, willfully misapplies, steals, or obtains by
fraud any funds, assets, or property provided under this part, whether
received directly or indirectly from the Department, shall: (1) If such
funds, assets, or property are of a value of $100 or more, be fined not
more than $25,000 or imprisoned not more than 5 years or both; or (2) if
such funds, assets, or property are of a value of less than $100, be
fined not more than $1,000 or imprisoned not more than one year or both.
(c) Whoever receives, conceals, or retains to his use or gain funds,
assets, or property provided under this part, whether received directly
or indirectly from the Department, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud, shall be subject to the same penalties provided in paragraph
(b) of this section.
(Sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760; sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626; 44 U.S.C. 3506))
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 18, 44 FR
37898, June 29, 1979; 47 FR 746, Jan. 7, 1982; 64 FR 50741, Sept. 20,
1999]
Sec. 215.7 Requirements for participation.
(a) Any school or nonprofit child care institution shall receive the
Special Milk Program upon request provided it does not participate in a
meal service program authorized under the Child Nutrition Act of 1966 or
the National School Lunch Act; except that schools with such meal
service may receive the Special Milk Program upon request only for the
children attending split-session kindergarten programs who do not have
access to the meal service. Each School Food Authority or child-care
institution shall make written application to the State agency, or FNSRO
where applicable, for any school or child-care institution in which it
desires to operate the Program, if such school or child-care institution
did not participate in the Program in the prior fiscal year.
(b) Any School Food Authority or child care institution
participating in the Program may elect to serve free milk to children
eligible for free meals. Upon application for the Program, each School
Food Authority or child care institution:
(1) Shall be required by the State agency, or FNSRO where
applicable, to state whether or not it wishes to provide free milk in
the schools or institutions participating under its jurisdiction and
(2) If it so wishes to provide free milk, shall also submit for
approval a free milk policy statement which, if for a school, shall be
in accordance with part 245 of this chapter or, if for a child care
institution, shall be in accordance with Sec. 215.13a of this part.
(c) The application shall include information in sufficient detail
to enable
[[Page 78]]
the State agency, or FNSRO where applicable, to determine whether the
School Food Authority or child-care institution is eligible to
participate in the Program and extent of the need for Program payments.
(d) Each school food authority or child care institution approved to
participate in the program shall enter into a written agreement with the
State agency or FNSRO, as applicable, that may be amended as necessary.
Nothing in the preceding sentence shall be construed to limit the
ability of the State agency to suspend or terminate the agreement in
accordance with Sec. 215.15. If a single State agency administers any
combination of the Child Nutrition Programs, that State agency shall
provide each SFA with a single agreement with respect to the operation
of those programs. Such agreement shall provide that the School Food
Authority or child-care institution shall, with respect to participating
schools and child-care institutions under its jurisdiction:
(1) Operate a nonprofit milk service. However, school food
authorities may use facilities, equipment, and personnel supported with
funds provided to a school food authority under this part to support a
nonprofit nutrition program for the elderly, including a program funded
under the Older Americans Act of 1965 (42 U.S.C. 3001 et seq.).
(2) If electing to provide free milk (i) serve milk free to all
eligible children, at times that milk is made available to nonneedy
children under the Program; and (ii) make no discrimination against any
needy child because of his inability to pay for the milk.
(3) Comply with the requirements of the Department's regulations
respecting nondiscrimination (7 CFR part 15);
(4) Claim reimbursement only for milk as defined in this part and in
accordance with the provisions of Sec. 215.8 and Sec. 215.10;
(5) Submit Claims for Reimbursement in accordance with Sec. 215.10
of this part and procedures established by the State agency or FNSRO
where applicable;
(6) Maintain a financial management system as prescribed by the
State agency, or FNSRO where applicable;
(7) Upon request, make all records pertaining to its milk program
available to the State agency and to FNS or OA for audit and
administrative review, at any reasonable time and place. Such records
shall be retained for a period of three years after the end of the
fiscal year to which they pertain, except that, if audit findings have
not been resolved, the records shall be retained beyond the three-year
period as long as required for the resolution of the issues raised by
the audit;
(8) Retain the individual applications for free milk submitted by
families for a period of three years after the end of the fiscal year to
which they pertain, except that, if audit findings have not been
resolved, the records shall be retained beyond the three-year period as
long as required for the resolution of the issues raised by the audit.
(e) State requirements. Nothing contained in this part shall prevent
a State agency from imposing additional requirements for participation
in the Program which are not inconsistent with the provision of this
part.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C. 1772); secs. 801, 803,
812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753, 1759(a), 1773,
1758); 44 U.S.C. 3506)
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 14, 41 FR
31174, July 27, 1976; Amdt. 16, 43 FR 1059, Jan. 6, 1978; 44 FR 10700,
Feb. 23, 1979; Amdt. 17, 44 FR 33047, June 8, 1979; 46 FR 51635, Oct.
20, 1981; 47 FR 745, Jan. 7, 1982; Amdt. 30, 49 FR 18986, 18987, May 4,
1984; 52 FR 7562, Mar. 12, 1987; 52 FR 15298, Apr. 28, 1987; 64 FR
50741, Sept. 20, 1999]
Sec. 215.8 Reimbursement payments.
(a) [Reserved]
(b)(1) The rate of reimbursement per half-pint of milk purchased and
(i) served in nonpricing programs to all children; (ii) served to all
children in pricing programs by institutions and School Food Authorities
not electing to provide free milk; and (iii) served to children other
than needy children in pricing programs by institutions and School Food
Authorities electing to provide free milk shall be the rate announced by
the Secretary for the applicable school year. However, in no event shall
the reimbursement for each half-pint (236 ml.) of milk served to
children
[[Page 79]]
exceed the cost of the milk to the school or child care institution.
(2) The rate of reimbursement for milk purchased and served free to
needy children in pricing programs by institutions and School Food
Authorities electing to provide free milk shall be the average cost of
milk, i.e., the total cost of all milk purchased during the claim
period, divided by the total number of purchased half-pints.
(c) Schools and child-care institutions having pricing programs
shall use the reimbursement payments received to reduce the price of
milk to children.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C. 1772); Omnibus
Reconciliation Act of 1980, sec. 209, Pub. L. 96-499, 94 Stat. 2599;
secs. 807 and 808, Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1772,
1784, 1760; secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42
U.S.C. 1773))
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 16, 43 FR
1060, Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979; Amdt. 17, 44 FR 33047,
June 8, 1979; 46 FR 51365, Oct. 20, 1981; Amdt. 23, 47 FR 14134, Apr. 2,
1982]
Sec. 215.9 Effective date for reimbursement.
(a) A State Agency, or FNSRO where applicable, may grant written
approval to begin operations under the Program prior to the receipt of
the application from the School Food Authority or child-care
institution. Such written approval shall be attached to the subsequently
filed application, and the agreement executed by the School Food
Authority or child-care institution shall be effective from the date
upon which the School Food Authority or child-care institution was
authorized to begin operations: Provided, however, That such effective
date shall not be earlier than the calendar month preceding the calendar
month in which the agreement is executed by the State Agency or by the
Department.
(b) Reimbursement payments pursuant to Sec. 215.8 shall be made for
milk purchased and served to children at any time during the effective
period of an agreement between a School Food Authority or child care
institution and the State agency or the Department.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 5, 37 FR 14686, July
22, 1972; Amdt. 13, 39 FR 28417, Aug. 7, 1974; Amdt. 16, 43 FR 1060,
Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979]
Sec. 215.10 Reimbursement procedures.
(a) To be entitled to reimbursement under this part, each School
Food Authority shall submit to the State agency, or FNSRO where
applicable, a monthly Claim for Reimbursement.
(b) Claims for Reimbursement shall include data in sufficient detail
to justify the reimbursement claimed and to enable the State agency to
provide the Reports of School Program Operations required under Sec.
215.11(c)(2). Unless otherwise approved by FNS, the Claim for
Reimbursement for any month shall include only milk served in that month
except if the first or last month of Program operations for any year
contains 10 operating days or less, such month may be added to the Claim
for Reimbursement for the appropriate adjacent month; however, Claims
for Reimbursement may not combine operations occurring in two fiscal
years. If a single State agency administers any combination of the Child
Nutrition Programs, the SFA shall be able to use a common claim form
with respect to claims for reimbursement for meals served under those
programs. A final Claim for Reimbursement shall be postmarked and/or
submitted to the State agency, or FNSRO where applicable, not later than
60 days following the last day of the full month covered by the claim.
State agencies may establish shorter deadlines at their discretion.
Claims not postmarked and/or submitted within 60 days shall not be paid
with Program funds unless FNS determines that an exception should be
granted. The State agency, or FNSRO where applicable, shall promptly
take corrective action with respect to any Claim for Reimbursement as
determined necessary through its claim review process or otherwise. In
taking such corrective action, State agencies may make upward
adjustments in Program funds claimed on claims filed within the 60 day
deadline if such adjustments are
[[Page 80]]
completed within 90 days of the last day of the claim month and are
reflected in the final Report of School Program Operations (FNS-10) for
the claim month which is required under Sec. 215.11(c)(2). Upward
adjustments in Program funds claimed which are not reflected in the
final FNS-10 for the claim month shall not be made unless authorized by
FNS. Downward adjustments in Program funds claimed shall always be made,
without FNS authorization, regardless of when it is determined that such
adjustments are necessary.
(c) [Reserved]
(d) In submitting a Claim for Reimbursement, each School Food
Authority or child-care institution shall certify that the claim is true
and correct; that records are available to support the claim; that the
claim is in accordance with the existing agreement; and that payment
therefor has not been received.
(e) Milk served to adults is not eligible for reimbursement.
(f) Any School Food Authority or child care institution which
operates both a nonpricing and pricing milk program in the same school
or child care institution, may elect to claim reimbursement for:
(1) All milk purchased and served to children under the Program at
the nonpricing rate prescribed in Sec. 215.8(b) (1), or (2) only milk
purchased and served to children in the pricing program at the rates
prescribed in Sec. 215.8(b) (1) and (2) for pricing programs.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
Pub. L. 97-370, 96 Stat. 1806)
[Amdt. 13, 39 FR 28417, Aug. 7, 1974, as amended by Amdt. 14, 41 FR
31175, July 27, 1976; Amdt. 16, 43 FR 1060, Jan. 6, 1978; 44 FR 10700,
Feb. 23, 1979; 45 FR 82622, Dec. 16, 1980; 48 FR 20896, May 10, 1983;
Amdt. 30, 49 FR 18986, May 4, 1984; 64 FR 50742, Sept. 20, 1999]
Sec. 215.11 Special responsibilities of State agencies.
(a) [Reserved]
(b) Program assistance. Each State agency, or FNSRO where
applicable, shall provide Program assistance, as follows:
(1) Consultive, technical, and managerial personnel to administer
the Program and monitor performance of schools and child-care
institutions and to measure progress toward achieving Program goals.
(2) Visits to participating schools and child-care institutions to
ensure compliance with Program regulations and with the Department's
nondiscrimination regulations (part 15 of this title), issued under
title VI of the Civil Rights Act of 1964. State agencies shall conduct
reviews of schools participating in the Program for compliance with the
provisions of this part when such schools are being reviewed under the
provisions identified under Sec. 210.18(i) of this title. Compliance
reviews of participating schools shall focus on the reviewed school's
compliance with the required certification, counting and milk service
procedures. School food authorities may appeal a denial of all or a part
of the Claim for Reimbursement or withholding of payment arising from
review activity conducted by the State agency under Sec. 210.18 of this
title or by FNS under Sec. 210.30(d)(2) of this title. Any such appeal
shall be subject to the procedures set forth under Sec. 210.18(q) of
this title or Sec. 210.30(d)(3) of this title, as appropriate.
(3) Documentation of such Program assistance shall be maintained on
file by the State agency, or FNSRO where applicable.
(c) Records and reports. (1) Each State agency shall maintain
Program records as necessary to support the reimbursement payments made
to child care institutions or School Food Authorities under Sec. 215.8
and Sec. 215.10 and the reports submitted to FNS under Sec.
215.11(c)(2). The records may be kept in their original form or on
microfilm, and shall be retained for a period of three years after the
date of submission of the final Financial Status Report for the fiscal
year, except that if audit findings have not been resolved, the records
shall be retained beyond the three-year period as long as required for
the resolution of the issues raised by the audit.
(2) Each State agency shall submit to FNS a final Report of School
Program Operations (FNS-10) for each month which shall be limited to
claims submitted in accordance with Sec. 215.10(b) and which shall be
postmarked and/or
[[Page 81]]
submitted no later than 90 days following the last day of the month
covered by the report. States shall not receive Program funds for any
month for which the final report is not submitted within this time limit
unless FNS grants an exception. Upward adjustments to a State agency's
report shall not be made after 90 days from the month covered by the
report unless authorized by FNS. Downward adjustments shall always be
made, without FNS authorization, regardless of when it is determined
that such adjustments are necessary. Adjustments shall be reported to
FNS in accordance with procedures established by FNS. Each State agency
shall also submit to FNS a quarterly Financial Status Report (SF-269) on
the use of Program funds. Such reports shall be postmarked and/or
submitted no later than 30 days after the end of each fiscal year
quarter. Obligations shall be reported only for the fiscal year in which
they occur. A final Financial Status Report for each fiscal year shall
be postmarked and/or submitted to FNS within 120 days after the end of
the fiscal year. FNS shall not be responsible for reimbursing unpaid
program obligations reported later than 120 days after the close of the
fiscal year in which they were incurred.
(d) Compliance. State agencies, or FNSROs where applicable, shall
require School Food Authorities and child-care institutions to comply
with applicable provisions of this part.
(e) Investigations. Each State Agency shall promptly investigate
complaints received or irregularities noted in connection with the
operation of the Program and shall take appropriate action to correct
any irregularities. State Agencies shall maintain on file evidence of
such investigations and actions. The Office of Investigation of the
Department (OI) shall make investigations at the request of the State
Agency or if CND or FNSRO determines investigations by OI are
appropriate.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766); 44
U.S.C. 3506; sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C.
1759a))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 13, 39 FR 28417, Aug.
7, 1974; Amdt. 14, 41 FR 31175, July 27, 1976; 47 FR 745, Jan. 7, 1982;
Amdt. 25, 47 FR 18564, Apr. 30, 1982; Amdt. 30, 49 FR 18987, May 4,
1984; 56 FR 32949, July 17, 1991; 57 FR 38586, Aug. 26, 1992]
Sec. 215.12 Claims against schools or child-care institutions.
(a) State agencies, or FNSROs where applicable, shall disallow any
portion of a claim and recover any payment made to a School Food
Authority or child-care institution that was not properly payable under
this part. State agencies will use their own procedures to disallow
claims and recover overpayments already made.
(b) [Reserved]
(c) The State Agency may refer any matter in connection with this
section to FNSRO and CND for determination of the action to be taken.
(d) Each State agency shall maintain all records pertaining to
action taken under this section. Such records shall be retained for a
period of three years after the date of the submission of the final
Financial Status Report, except that, if audit findings have not been
resolved, the records shall be retained beyond the three-year period as
long as required for the resolution of the issues raised by the audit.
(e) If CND does not concur with the State Agency action in paying a
claim or a reclaim, or in failing to collect an overpayment FNSRO shall
assert a claim against the State Agency for the amount of such claim,
reclaim or overpayment. In all such cases, the State Agency shall have
full opportunity to submit to CND evidence or information concerning the
action taken. If in the determination of CND, the State Agency's action
was unwarranted, the State Agency shall promptly pay to FNS the amount
of the claim, reclaim, or overpayment.
(f) The amounts recovered by the State Agency from schools and
child-care institutions may be utilized, first, to make reimbursement
payments for
[[Page 82]]
milk served during the fiscal year for which the funds were initially
available, and second, to repay any State funds expended in the
reimbursement of claims under the program and not otherwise repaid. Any
amounts recovered which are not so utilized shall be returned to FNS in
accordance with the requirements of Sec. 215.5(c).
(g) With respect to schools or child-care institutions in which
FNSRO administers the Program, when FNSRO disallows a claim or a portion
of a claim, or makes a demand for refund of an alleged overpayment, it
shall notify the School Food Authority or child-care institutions of the
reasons for such disallowance or demand and the School Food Authority or
child-care institutions shall have full opportunity to submit evidence
or to file reclaim for any amount disallowed or demanded in the same
manner afforded in this section to schools or child-care institutions
administered by State Agencies.
(h) The Secretary shall have the authority to determine the amount
of, to settle, and to adjust any claims arising under the Program, and
to compromise or deny such claim or any part thereof. The Secretary
shall also have the authority to waive such claims if the Secretary
determines that to do so would serve the purposes of the Program. This
provision shall not diminish the authority of the Attorney General of
the United States under section 516 of Title 28, U.S. Code, to conduct
litigation on behalf of the United States.
(47 FR 745, Jan. 7, 1982 (44 U.S.C. 3506; secs. 804, 816 and 817, Pub.
L. 97-35; 95 Stat. 521-535 (42 U.S.C. 1753, 1756, 1759, 1771 and 1785))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 5, 37 FR 14686, July
22, 1972; Amdt. 13, 39 FR 28418, Aug. 7, 1974; Amdt. 14, 41 FR 31175,
July 27, 1976; 47 FR 745, Jan. 7, 1982; Amdt. 24, 47 FR 14133, Apr. 2,
1982]
Sec. 215.13 Management evaluations and audits.
(a) Unless otherwise exempt, audits at the State and school food
authority/child care institution levels shall be conducted in accordance
with Office of Management and Budget Circular A-133 and the Department's
implementing regulations at 7 CFR part 3052. For availability of the OMB
Circular mentioned in this paragraph, please refer to 5 CFR 1310.3.
(b) Each State agency shall provide FNS with full opportunity to
conduct management evaluations (including visits to schools and child-
care institutions) of any operations of the State agency under the
Program and shall provide OIG with full opportunity to conduct audits
(including visits to schools and child-care institutions) of all
operations of the State agency under the Program. Each State agency
shall make available its records, including records of the receipt and
expenditure of funds under the Program, upon a reasonable request by FNS
or OIG. OIG shall also have the right to make audits of the records and
operations of any school or child-care institution.
(c) In conducting management evaluations, reviews or audits for any
fiscal year, the State agency, FNS, or OIG may disregard any overpayment
if the total overpayment does not exceed $600 or, in the case of State
agency claims in State administered Programs, it does not exceed the
amount established under State law, regulations or procedure as a
minimum amount for which claim will be made for State losses but not to
exceed $600. However, no overpayment is to be disregarded where there is
substantial evidence of violations of criminal law or civil fraud
statutes.
(Secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1773);
sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1759a))
[Amdt. 14, 41 FR 31175, July 27, 1976, as amended at 43 FR 58925, Dec.
22, 1978; Amdt. 23, 47 FR 14135, Apr. 2, 1982; Amdt. 25, 47 FR 18564,
Apr. 30, 1982; Amdt. 36, 54 FR 2990, Jan. 23, 1989; 57 FR 38586, Aug.
26, 1992; 59 FR 1894, Jan. 13, 1994; 64 FR 50742, Sept. 20, 1999; 71 FR
39516, July 13, 2006]
Sec. 215.13a Determining eligibility for free milk in child-care institutions.
(a) General. Child care institutions which operate pricing programs
may elect to make free milk available, as set forth in Sec.
215.7(d)(2), to children who meet the approved eligibility criteria.
Such child care institutions shall determine the children who are
eligible for free milk and assure that there is no physical segregation
of, or other
[[Page 83]]
discrimination against, or overt identification of, children unable to
pay the full price for milk.
(b) Action by State agencies and FNSROs. Each State agency, or FNSRO
where applicable, upon application for the program by a child care
institution operating a pricing program, and annually thereafter, shall
require the institution to state whether or not it wishes to serve free
milk to eligible children at times that milk is provided under the
Program. It shall annually require each child care institution electing
to provide free milk to submit a free milk policy statement and shall
provide such institutions with a prototype free milk policy statement
and a copy of the State's family-size income standards for determining
eligibility for free meals and milk under the National School Lunch and
School Breakfast Programs to assist the institutions in meeting its
responsibilities.
(c) Action by institutions. Each child care institution which
operates a pricing program shall inform the State agency, or FNSRO where
applicable, at the time it applies for Program participation and at
least annually thereafter, whether or not it wishes to provide free
milk. Institutions electing to provide free milk shall annually submit a
written free milk policy statement for determining free milk eligibility
of children under their jurisdiction, which shall contain the items
specified in paragraph (d) of this section. Such institutions shall not
be approved for Program participation of their agreements renewed unless
the free milk policy has been reviewed and approved. Pending approval or
a revision of a policy statement, the existing policy shall remain in
effect.
(d) Policy statement. A free milk policy statement as required in
paragraph (c) of this section shall contain the following:
(1) The specific criteria to be used in determining eligibility for
free milk. These criteria shall give consideration to economic need as
reflected by family size and income. The criteria used by the child-care
institution may not result in the eligibility of children from families
whose incomes exceed the State's family-size income standards for
determining eligibility for free meals under the National School Lunch
and School Breakfast Programs.
(2) The method by which the child-care institution will collect
information from families in order to determine a child's eligibility
for free milk.
(3) The method by which the child-care institution will collect milk
payments so as to prevent the overt identification of children receiving
free milk.
(4) A hearing procedure substantially like that outlined in part 245
of this chapter.
(5) An assurance that there will be no discrimination against free
milk recipients and no discrimination against any child on the basis of
race, color, or national origin.
(e) Public announcement of eligibility criteria. Each child care
institution which elects to make free milk available under the Program
shall annually make a public announcement of the availability of free
milk to children who meet the approved eligibility criteria to the
information media serving the area from which its attendance is drawn.
The public announcement must also state that milk is available to all
children in attendance without regard to race, color, or national
origin.
(f) Privacy Act notice requirements. The free milk application
provided to households must include a Privacy Act notice/statement
informing households of how the social security number and other
information provided on the application will be used. Each free milk
application must include substantially the following statement, ``The
Richard B. Russell National School Lunch Act requires the information on
this application. You do not have to give the information, but if you do
not, we cannot approve your child for free milk. You must include the
social security number of the adult household member who signs the
application. The social security number is not required when you apply
on behalf of a foster child or you list a Food Stamp, Temporary
Assistance for Needy Families (TANF) Program or Food Distribution
Program on Indian Reservations (FDPIR) case number for your child or
other FDPIR identifier or when you indicate that the adult household
member signing the application does not have a social
[[Page 84]]
security number. We will use your information to determine if your child
is eligible for free milk, and for administration and enforcement of the
Program.'' When the State agency or child care institution, as
appropriate, plans to use or disclose children's eligibility information
for non-program purposes, additional information, as specified in
paragraph (i) of this section must be added to the Privacy Act notice/
statement. State agencies and child care institutions are responsible
for drafting the appropriate notice and ensuring that the notice
complies with section 7(b) of the Privacy Act of 1974 (5 U.S.C. 552a
note (Disclosure of Social Security Number)).
(g) Disclosure of children's free milk eligibility information to
certain programs and individuals without parental consent. The State
agency or child care institution, as appropriate, may disclose aggregate
information about children eligible for free milk to any party without
parental notification and consent when children cannot be identified
through release of the aggregate data or by means of deduction.
Additionally, the State agency or child care institution may disclose
information that identifies children eligible for free milk to the
programs and the individuals specified in this paragraph (g) without
parent/guardian consent. The State agency or child care institution that
makes the free milk eligibility determination is responsible for
deciding whether to disclose program eligibility information.
(1) Persons authorized to receive eligibility information. Only
persons directly connected with the administration or enforcement of a
program or activity listed in paragraphs (g)(2) or (g)(3) of this
section may have access to children's free milk eligibility information,
without parental consent. Persons considered directly connected with
administration or enforcement of a program or activity listed in
paragraphs (g)(2) or (g)(3) of this section are Federal, State, or local
program operators responsible for the ongoing operation of the program
or activity or persons responsible for program compliance. Program
operators may include persons responsible for carrying out program
requirements and monitoring, reviewing, auditing, or investigating the
program. Program operators may include contractors, to the extent those
persons have a need to know the information for program administration
or enforcement. Contractors may include evaluators, auditors, and others
with whom Federal or State agencies and program operators contract with
to assist in the administration or enforcement of their program on their
behalf.
(2) Disclosure of children's names and free milk eligibility status.
The State agency or child care institution, as appropriate, may
disclose, without parental consent, only children's names and
eligibility status (whether they are eligible for free milk) to persons
directly connected with the administration or enforcement of:
(i) A Federal education program;
(ii) A State health program or State education program administered
by the State or local education agency;
(iii) A Federal, State, or local means-tested nutrition program with
eligibility standards comparable to the National School Lunch Program
(i.e., food assistance programs for households with incomes at or below
185 percent of the Federal poverty level); or
(iv) A third party contractor assisting in verification of
eligibility efforts by contacting households who fail to respond to
requests for verification of their eligibility.
(3) Disclosure of all eligibility information. In addition to
children's names and eligibility status, the State agency or child care
institution, as appropriate, may disclose, without parental consent, all
eligibility information obtained through the free milk eligibility
process (including all information on the application or obtained
through direct certification) to:
(i) Persons directly connected with the administration or
enforcement of programs authorized under the Richard B. Russell National
School Lunch Act or the Child Nutrition Act of 1966. This means that all
eligibility information obtained for the Special Milk Program may be
disclosed to persons directly connected with administering or enforcing
regulations under the National School Lunch Program, School Breakfast
Program, Child and Adult Care
[[Page 85]]
Food Program, Summer Food Service Program and the Special Supplemental
Nutrition Program for Women, Infants and Children (WIC) (Parts 210, 220,
226, 225, and 246, respectively, of this chapter);
(ii) The Comptroller General of the United States for purposes of
audit and examination; and
(iii) Federal, State, and local law enforcement officials for the
purpose of investigating any alleged violation of the programs listed in
paragraphs (g)(2) and (g)(3) of this section.
(4) Use of free milk eligibility information by programs other than
Medicaid or the State Children's Health Insurance Program (SCHIP). State
agencies and child care institutions may use children's free milk
eligibility information for administering or enforcing the Special Milk
Program. Additionally, any other Federal, State, or local agency charged
with administering or enforcing the Special Milk Program may use the
information for that purpose. Individuals and programs to which
children's free milk eligibility information has been disclosed under
this section may use the information only in the administration or
enforcement of the receiving program. No further disclosure of the
information may be made.
(h) Disclosure of children's free milk eligibility information to
Medicaid and/or SCHIP, unless parents decline. Children's free milk
eligibility information only may be disclosed to Medicaid or SCHIP when
both the State agency and the child care institution so elect, the
parent/guardian does not decline to have their eligibility information
disclosed and the other provisions described in paragraph (h)(1) of this
section are met. The State agency or child care institution, as
appropriate, may disclose children's names, eligibility status (whether
they are eligible for free milk), and any other eligibility information
obtained through the free milk application or obtained through direct
certification to persons directly connected with the administration of
Medicaid or SCHIP. Persons directly connected to the administration of
Medicaid and SCHIP are State employees and persons authorized under
Federal and State Medicaid and SCHIP requirements to carry out initial
processing of Medicaid or SCHIP applications or to make eligibility
determinations for Medicaid or SCHIP.
(1) The State agency must ensure that:
(i) The child care institution and health insurance program
officials have a written agreement that requires the health insurance
program agency to use the eligibility information to seek to enroll
children in Medicaid and SCHIP; and
(ii) Parents/guardians are notified that their eligibility
information may be disclosed to Medicaid or SCHIP and given an
opportunity to decline to have their children's eligibility information
disclosed, prior to any disclosure.
(2) Use of children's free milk eligibility information by Medicaid/
SCHIP. Medicaid and SCHIP agencies and health insurance program
operators receiving children's free milk eligibility information must
use the information to identify eligible children and enroll them in
Medicaid or SCHIP. The Medicaid and SCHIP enrollment process may include
targeting and identifying children from low-income households who are
potentially eligible for Medicaid or SCHIP for the purpose of seeking to
enroll them in Medicaid or SCHIP. No further disclosure of the
information may be made. Medicaid and SCHIP agencies and health
insurance program operators also may verify children's eligibility in a
program under the Child Nutrition Act of 1966 or the Richard B. Russell
National School Lunch Act.
(i) Notifying households of potential uses and disclosures of
children's free milk eligibility information. Households must be
informed that the information they provide on the free milk application
will be used to determine eligibility for free milk and that their
eligibility information may be disclosed to other programs.
(1) For disclosures to programs, other than Medicaid or SCHIP, that
are permitted access to children's eligibility information without
parent/guardian consent, the State agency or child care institution, as
appropriate, must notify parents/guardians at the time of application
that their children's free milk eligibility information may be
disclosed. The State agency or child care
[[Page 86]]
institution, as appropriate, must add substantially the following
statement to the Privacy Act notice/statement required under paragraph
(f) of this section, ``We may share your eligibility information with
education, health, and nutrition programs to help them evaluate, fund,
or determine benefits for their programs; auditors for program reviews;
and law enforcement officials to help them look into violations of
program rules.'' For children determined eligible for free milk through
direct certification, the notice of potential disclosure may be included
in the document informing parents/guardians of their children's
eligibility for free milk through direct certification process.
(2) For disclosure to Medicaid or SCHIP, the State agency or child
care institution, as appropriate, must notify parents/guardians that
their children's free milk eligibility information will be disclosed to
Medicaid and/or SCHIP unless the parent/guardian elects not to have
their information disclosed and notifies the State agency or child care
institution, as appropriate, by a date specified by the State agency or
child care institution, as appropriate. Only the parent or guardian who
is a member of the household or family for purposes of the free milk
application may decline the disclosure of eligibility information to
Medicaid or SCHIP. The notification must inform parents/guardians that
they are not required to consent to the disclosure, that the
information, if disclosed, will be used to identify eligible children
and seek to enroll them in Medicaid or SCHIP, and that their decision
will not affect their children's eligibility for free milk. The
notification may be included in the letter/notice to parents/guardians
that accompanies the free milk application, on the application itself or
in a separate notice provided to parents/guardians. The notice must give
parents/guardians adequate time to respond if they do not want their
information disclosed. The State agency or child care institution, as
appropriate, must add substantially the following statement to the
Privacy Act notice/statement required under paragraph (f) of this
section, ``We may share your information with Medicaid or the State
Children's Health Insurance Program, unless you tell us not to. The
information, if disclosed, will be used to identify eligible children
and seek to enroll them in Medicaid or SCHIP.'' For children determined
eligible for free milk through direct certification, the notice of
potential disclosure and opportunity to decline the disclosure may be
included in the document informing parents/guardians of their children's
eligibility for free milk through direct certification.
(j) Other disclosures. State agencies and child care institutions
that plan to use or disclose identifying information about children
eligible for free milk to programs or individuals not specified in this
section must obtain written consent from children's parents or guardians
prior to the use or disclosure.
(1) The consent must identify the information that will be shared
and how the information will be used.
(2) There must be a statement informing parents and guardians that
failing to sign the consent will not affect the child's eligibility for
free milk and that the individuals or programs receiving the information
will not share the information with any other entity or program.
(3) Parents/guardians must be permitted to limit the consent only to
those programs with which they wish to share information.
(4) The consent statement must be signed and dated by the child's
parent or guardian who is a member of the household for purposes of the
free milk application.
(k) Agreements with programs/individuals receiving children's free
milk eligibility information. Agreements or Memoranda of Understanding
(MOU) are recommended or required as follows:
(1) The State agency or child care institution, as appropriate,
should have a written agreement or MOU with programs or individuals
receiving eligibility information, prior to disclosing children's free
milk eligibility information. The agreement or MOU should include
information similar to that required for disclosures to Medicaid and
SCHIP specified in paragraph (k)(2) of this section.
[[Page 87]]
(2) For disclosures to Medicaid or SCHIP, the State agency or child
care institution, as appropriate, must have a written agreement with the
State or local agency or agencies administering Medicaid or SCHIP prior
to disclosing children's free milk eligibility information to those
agencies. At a minimum, the agreement must:
(i) Identify the health insurance program or health agency receiving
children's eligibility information;
(ii) Describe the information that will be disclosed;
(iii) Require that the Medicaid or SCHIP agency use the information
obtained and specify that the information must be used to seek to enroll
children in Medicaid or SCHIP;
(iv) Require that the Medicaid or SCHIP agency describe how they
will use the information obtained;
(v) Describe how the information will be protected from unauthorized
uses and disclosures;
(vi) Describe the penalties for unauthorized disclosure; and
(vii) Be signed by both the Medicaid or SCHIP program or agency and
the State agency or child care institution, as appropriate.
(l) Penalties for unauthorized disclosure or misuse of children's
free milk eligibility information. In accordance with section 9(b)(6)(C)
of the Richard B. Russell National School Lunch Act (42 U.S.C.
1758(b)(6)(C)), any individual who publishes, divulges, discloses or
makes known in any manner, or to any extent not authorized by statute or
this section, any information obtained under this section will be fined
not more than $1,000 or imprisoned for up to 1 year, or both.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C. 1772))
[Amdt. 14, 41 FR 31176, July 27, 1976, as amended by Amdt. 16, 43 FR
1060, Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979; Amdt. 17, 44 FR 33047,
June 8, 1979; 66 FR 2201, Jan. 11, 2001; 72 FR 10892, Mar. 12, 2007]
Sec. 215.14 Nondiscrimination.
The Department's regulations on nondiscrimination in federally
assisted programs are set forth in part 15 of this title. The
Department's agreements with State agencies, the State agencies'
agreements with School Food Authorities and child-care institutions and
the FNSRO agreements with School Food Authorities administering
nonprofit private schools and with child-care institutions shall contain
the assurances required by such regulations. When different types of
milk are served to children, (a) a uniform price for each type of milk
served shall be charged to all non-needy children in the school or
child-care institution who purchase milk, and (b) needy children shall
be given the opportunity to select any type of milk offered.
(44 U.S.C. 3506)
[Amdt. 13, 39 FR 28418, Aug. 7, 1974, as amended at 47 FR 745, Jan. 7,
1982]
Sec. 215.14a Procurement standards.
(a) General. State agencies and school food authorities shall comply
with the requirements of this part and parts 3015, 3016 and 3019 of this
title, as applicable, which implement the applicable Office of
Management and Budget Circulars, concerning the procurement of all goods
and services with nonprofit school food service account funds.
(b) Contractual responsibilities. The standards contained in this
part and 7 CFR part 3015, 7 CFR part 3016 and 7 CFR part 3019, as
applicable, do not relieve the State agency or School Food Authority of
any contractual responsibilities under its contract. The State agency or
School Food Authority is the responsible authority, without recourse to
FNS, regarding the settlement and satisfaction of all contractual and
administrative issues arising out of procurements entered into in
connection with the Program. This includes but is not limited to: Source
evaluation, protests, disputes, claims, or other matters of a
contractual nature. Matters concerning violation of law are to be
referred to the local, State or Federal authority that has proper
jurisdiction.
(c) Procedures. The State agency may elect to follow either the
State laws, policies and procedures as authorized by Sec. Sec.
3016.36(a) and 3016.37(a) of this title, or the procurement standards
for other governmental grantees and all governmental subgrantees in
accordance with Sec. 3016.36(b) through (i) of this
[[Page 88]]
title. Regardless of the option selected, States must ensure that all
contracts include any clauses required by Federal statutes and executive
orders and that the requirements of Sec. 3016.60(b) and (c) of this
title are followed. The school food authority or child care institution
may use its own procurement procedures which reflect applicable State or
local laws and regulations, provided that procurements made with
nonprofit school food service account funds adhere to the standards set
forth in this part and Sec. Sec. 3016.36(b) through 3016.36(i), 3016.60
and Sec. Sec. 3019.40 through 3019.48 of this title, as applicable, and
in the applicable Office of Management and Budget Circulars. School food
authority procedures must include a written code of standards of conduct
meeting the minimum standards of Sec. 3016.36(b)(3) or Sec. 3019.42 of
this title, as applicable.
(1) Pre-issuance review requirement. The State agency may impose a
pre-issuance review requirement on a school food authority's proposed
procurement. The school food authority must make available, upon request
of the State agency, its procurement documents, including but not
limited to solicitation documents, specifications, evaluation criteria,
procurement procedures, proposed contracts and contract terms. School
food authorities shall comply with State agency requests for changes to
procurement procedures and solicitation and contract documents to ensure
that, to the State agency's satisfaction, such procedures and documents
reflect applicable procurement and contract requirements and the
requirements of this part.
(2) Prototype solicitation documents and contracts. The school food
authority must obtain the State agency's prior written approval for any
change made to prototype solicitation or contract documents before
issuing the revised solicitation documents or execution of the revised
contract.
(3) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a
procurement failing to meet the requirements of this part.
(d) Cost reimbursable contracts--(1) Required provisions. The school
food authority must include the following provisions in all cost
reimbursable contracts, including contracts with cost reimbursable
provisions, and in solicitation documents prepared to obtain offers for
such contracts:
(i) Allowable costs will be paid from the nonprofit school food
service account to the contractor net of all discounts, rebates and
other applicable credits accruing to or received by the contractor or
any assignee under the contract, to the extent those credits are
allocable to the allowable portion of the costs billed to the school
food authority;
(ii)(A) The contractor must separately identify for each cost
submitted for payment to the school food authority the amount of that
cost that is allowable (can be paid from the nonprofit school food
service account) and the amount that is unallowable (cannot be paid from
the nonprofit school food service account), or
(B) The contractor must exclude all unallowable costs from its
billing documents and certify that only allowable costs are submitted
for payment and records have been established that maintain the
visibility of unallowable costs, including directly associated costs in
a manner suitable for contract cost determination and verification;
(iii) The contractor's determination of its allowable costs must be
made in compliance with the applicable Departmental and Program
regulations and Office of Management and Budget cost circulars;
(iv) The contractor must identify the amount of each discount,
rebate and other applicable credit on bills and invoices presented to
the school food authority for payment and identify the amount as a
discount, rebate, or in the case of other applicable credits, the nature
of the credit. If approved by the State agency, the school food
authority may permit the contractor to report this information on a less
frequent basis than monthly, but no less frequently than annually;
(v) The contractor must identify the method by which it will report
discounts, rebates and other applicable credits allocable to the
contract that are not reported prior to conclusion of the contract; and
[[Page 89]]
(vi) The contractor must maintain documentation of costs and
discounts, rebates and other applicable credits, and must furnish such
documentation upon request to the school food authority, the State
agency, or the Department.
(2) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a cost
reimbursable contract that fails to include the requirements of this
section, nor may any expenditure be made from the nonprofit school food
service account that permits or results in the contractor receiving
payments in excess of the contractor's actual, net allowable costs.
(Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80 Stat.
885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C. 1759))
[Amdt. 27, 48 FR 19355, Apr. 29, 1983, as amended at 71 FR 39516, July
13, 2006; 72 FR 61492, Oct. 31, 2007]
Sec. 215.15 Withholding payments.
In accordance with Departmental regulations at Sec. 3016.43 and
Sec. 3019.62 of this title, the State agency shall withhold Program
payments in whole or in part, to any school food authority which has
failed to comply with the provisions of this part. Program payments
shall be withheld until the school food authority takes corrective
action satisfactory to the State agency, or gives evidence that such
corrective actions will be taken, or until the State agency terminates
the grant in accordance with Sec. 215.16. Subsequent to the State
agency's acceptance of the corrective actions, payments will be released
for any milk served in accordance with the provisions of this part
during the period the payments were withheld.
[72 FR 61493, Oct. 31, 2007]
Sec. 215.16 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed
to comply with the provisions of this part, or with FNS guidelines and
instructions, FNS may suspend or terminate the Program in whole, or in
part, or take any other action as may be available and appropriate. A
State agency may also terminate the Program by mutual agreement with
FNS. FNS and the State agency shall comply with the provisions of 7 CFR
part 3016, concerning grant suspension, termination and closeout
procedures. Furthermore, the State agency, or FNSRO where applicable,
shall apply these provisions, or the parallel provisions of 7 CFR part
3019, as applicable, to suspension or termination of the Program in
School Food Authorities.
[Amdt. 30, 49 FR 18987, May 4, 1984, as amended at 71 FR 39517, July 13,
2006. Redesignated at 72 FR 61493, Oct. 31, 2007]
Sec. 215.17 Program information.
School Food Authorities and child-care institutions desiring
information concerning the Program should write to their State
educational agency, or the appropriate Food and Nutrition Service
Regional Office of FNS as indicated below:
(a) In the States of Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, and Vermont: Northeast Regional
Office, FNS, U.S. Department of Agriculture, 10 Causeway Street, Room
501, Boston, Massachusetts 02222-1065.
(b) In the States of Delaware, District of Columbia, Maryland, New
Jersey, Pennsylvania, Puerto Rico, Virginia, Virgin Islands, and West
Virginia: Mid-Atlantic Regional Office, FNS, U.S. Department of
Agriculture, 300 Corporate Boulevard, Robbinsville, New Jersey 08691-
1598.
(c) In the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee: Southeast
Regional Office, FNS, U.S. Department of Agriculture, 61 Forsyth Street
SW., Room 8T36, Atlanta, Georgia 30303.
(d) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio,
and Wisconsin: Midwest Regional Office, FNS, U.S. Department of
Agriculture, 77 West Jackson Boulevard, 20th Floor, Chicago, Illinois
60604-3507.
(e) In the States of Arkansas, Louisiana, New Mexico, Oklahoma,
Texas: Southwest Regional Office, Food and Nutrition Service, U.S.
Department of Agriculture, 1100 Commerce Street, Room 5-C-30, Dallas,
Texas 75242.
[[Page 90]]
(f) In the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon, The Commonwealth of the Northern
Mariana Islands, and Washington: Western Regional Office, FNS, U.S.
Department of Agriculture, 550 Kearny Street, Room 400, San Francisco,
California 94108.
(g) In the States of Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Utah, and Wyoming: Mountain Plains
Regional Office, FNS, U.S. Department of Agriculture, 1244 Speer
Boulevard, Suite 903, Denver, Colorado 80204.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760); sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626); secs. 804, 816, 817 and 819, Pub. L. 97-
35, 95 Stat. 521-535 (42 U.S.C. 1753, 1756, 1759, 1771, 1773 and 1785)
[Amdt. 14, 41 FR 31178, July 27, 1976, as amended by Amdt. 18, 44 FR
37898, June 29, 1979; Amdt. 27, 48 FR 195, Jan. 4, 1983; Amdt. 36, 54 FR
2990, Jan. 23, 1989; 65 FR 12435, Mar. 9, 2000. Redesignated at 72 FR
61493, Oct. 31, 2007]
Sec. 215.18 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control
number
------------------------------------------------------------------------
215.3(d)................................................... 0584-0327
215.5(a)................................................... 0584-0005
0584-0002
215.5(c)................................................... 0584-0341
215.7 (a), (c)............................................. 0584-0005
215.7 (b)(2)............................................... 0584-0026
215.7(d)................................................... 0584-0329
0584-0005
215.10 (a), (b), (d)....................................... 0584-0005
0584-0284
215.11 (b), (c)(1), (e).................................... 0584-0005
215.11(c)(2)............................................... 0584-0002
0584-0341
215.12 (a), (d), (e), (g).................................. 0584-0005
215.13(a).................................................. 0584-0005
215.13a(a)-(e)............................................. 0584-0026
215.14..................................................... 0584-0005
215.14a(a)-(c)............................................. 0584-0005
215.15..................................................... 0584-0005
------------------------------------------------------------------------
[50 FR 53258, Dec. 31, 1985. Redesignated at 72 FR 61493, Oct. 31, 2007]
PART 220_SCHOOL BREAKFAST PROGRAM--Table of Contents
Sec.
220.1 General purpose and scope.
220.2 Definitions.
220.3 Administration.
220.4 Payment of funds to States and FNSROs.
220.5 Method of payment to States.
220.6 Use of funds.
220.7 Requirements for participation.
220.8 Nutrition standards and menu planning approaches for breakfasts.
220.9 Reimbursement payments.
220.10 Effective date for reimbursement.
220.11 Reimbursement procedures.
220.12 Competitive food services.
220.13 Special responsibilities of State agencies.
220.14 Claims against school food authorities.
220.15 Management evaluations and audits.
220.16 Procurement standards.
220.17 Prohibitions.
220.18 Withholding payments.
220.19 Suspension, termination and grant closeout procedures.
220.20 Free and reduced price breakfasts.
220.21 Program information.
220.22 Information collection/recordkeeping--OMB assigned control
numbers.
Appendix A to Part 220--Alternate Foods for Meals
Appendix B to Part 220--Categories of Foods of Minimal Nutritional Value
Appendix C to Part 220--Child Nutrition (CN) Labeling Program
Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.
Sec. 220.1 General purpose and scope.
This part announces the policies and prescribes the regulations
necessary to carry out the provisions of section 4 of the Child
Nutrition Act of 1966, as amended, which authorizes payments to the
States to assist them to initiate, maintain, or expand nonprofit
breakfast programs in schools.
[Amdt. 25, 41 FR 34758, Aug. 17, 1976]
Sec. 220.2 Definitions.
For the purpose of this part the term:
7 CFR part 3015 means the Uniform Federal Assistance Regulations
published by the Department to implement certain policies applicable to
all Department programs. The applicable provisions deal with competition
for discretionary grants and cooperative agreements, costs requiring
prior approval, acknowledgement of Department support in publications
and audiovisuals produced under Department programs, intergovernmental
review of Department programs under
[[Page 91]]
Executive Order 12372, and certain miscellaneous Department
requirements.
7 CFR part 3016 means the Department's Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments. 7 CFR part 3016 covers requirements for awards and
subawards to State and local governmental organizations under Department
programs.
7 CFR part 3018 means the Department's Common Rule regarding
Governmentwide New Restrictions on Lobbying. Part 3018 implements the
requirements established by section 319 of the 1990 Appropriations Act
for the Department of Interior and Related Agencies (Pub. L. 101-121).
7 CFR part 3019 means the Department's Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Non-Profit Organizations. 7 CFR part
3019 covers requirements for awards and subawards to nongovernmental,
nonprofit organizations under Department programs.
7 CFR part 3052 means the Department's regulations implementing A-
133, ``Audits of State, Local Governments, and Non-Profit
Organizations.'' (For availability of OMB Circulars referenced in this
definition, see 5 CFR 1310.3.)
Act means the Child Nutrition Act of 1966, as amended.
Applicable credits shall have the meaning established in Office of
Management and Budget Circulars A-87, C(4) and A-122, Attachment A,
A(5), respectively. For availability of OMB circulars referenced in this
definition see 5 CFR 1310.3.
Breakfast means a meal which meets the nutritional requirements set
out in Sec. 220.8, and which is served to a child in the morning hours.
The meal shall be served at or close to the beginning of the child's day
at school.
Child means: (1) A student of high school grade or under as
determined by the State educational agency, who is enrolled in an
educational unit of high school grade or under as described in
paragraphs (1) and (2) of the definition of ``School'', including
students who are mentally or physically disabled as defined by the State
and who are participating in a school program established for the
mentally or physically disabled; or (2) a person under 21 chronological
years of age who is enrolled in an institution or center as described in
paragraph (3) of the definition of School in this section.
Competitive foods means any foods sold in competition with the
School Breakfast Program to children in food service areas during the
breakfast period.
CND means the Child Nutrition Division of the Food and Nutrition
Service of the Department.
Contractor means a commercial enterprise, public or nonprofit
private organization or individual that enters into a contract with a
school food authority.
Cost reimbursable contract means a contract that provides for
payment of incurred costs to the extent prescribed in the contract, with
or without a fixed fee.
Department means the U.S. Department of Agriculture.
Distributing agency means a State, Federal, or private agency which
enters into an agreement with the Department for the distribution of
commodities pursuant to part 250 of this chapter.
Fiscal year means the period of 15 calendar months beginning July 1,
1976, and ending September 30, 1977; and the period of 12 calendar
months beginning October 1, 1977, and each October 1 of any calendar
year thereafter and ending September 30 of the following calendar year.
Fixed fee means an agreed upon amount that is fixed at the inception
of the contract. In a cost reimbursable contract, the fixed fee includes
the contractor's direct and indirect administrative costs and profit
allocable to the contract.
FNS means the Food and Nutrition Service of the Department.
FNSRO means the appropriate Food and Nutrition Service Regional
Office of the Food and Nutrition Service of the Department.
Foods of minimal nutritional value means: (1) In the case of
artificially sweetened foods, a food which provides less than five
percent of the Reference Daily Intake (RDI) for each of eight specified
nutrients per serving; (2) in
[[Page 92]]
the case of all other foods, a food that provides less than five percent
of the RDI for each of eight specified nutrients per 100 calories and
less than five percent of the RDI for each of eight specified nutrients
per serving. The eight nutrients to be assessed for this purpose are:
Protein, vitamin A, vitamin C, niacin, riboflavin, thiamin, calcium and
iron. Categories of foods of minimal nutritional value are listed in
appendix B of this part.
Free breakfast means a breakfast for which neither the child nor any
member of his family pays or is required to work in the school or in the
school's food service.
Infant cereal means any iron fortified dry cereal especially
formulated and generally recognized as cereal for infants that is
routinely mixed with breast milk or iron-fortified infant formula prior
to consumption.
Infant formula means any iron-fortified infant formula intended for
dietary use solely as a food for normal healthy infants excluding those
formulas specifically formulated for infants with inborn errors of
metabolism or digestive or absorptive problems. Infant formula, as
served, must be in liquid state at recommended dilution.
Local educational agency means a public board of education or other
public or private nonprofit authority legally constituted within a State
for either administrative control or direction of, or to perform a
service function for, public or private nonprofit elementary schools or
secondary schools in a city, county, township, school district, or other
political subdivision of a State, or for a combination of school
districts or counties that is recognized in a State as an administrative
agency for its public or private nonprofit elementary schools or
secondary schools. The term also includes any other public or private
nonprofit institution or agency having administrative control and
direction of a public or private nonprofit elementary school or
secondary school, including residential child care institutions, Bureau
of Indian Affairs schools, and educational service agencies and
consortia of those agencies, as well as the State educational agency in
a State or territory in which the State educational agency is the sole
educational agency for all public or private nonprofit schools.
Menu item means, under Nutrient Standard Menu Planning or Assisted
Nutrient Standard Menu Planning, any single food or combination of
foods. All menu items or foods offered as part of the reimbursable meal
may be considered as contributing towards meeting the nutrition
standards provided in Sec. 220.8, except for those foods that are
considered as foods of minimal nutritional value as provided for in the
definition of Foods of minimal nutritional value in this section which
are not offered as part of a menu item in a reimbursable meal. For the
purposes of a reimbursable breakfast, a minimum of three menu items must
be offered, one of which shall be fluid milk served as a beverage or on
cereal or both; under offer versus serve, a student may decline only one
menu item.
Milk means pasteurized fluid types of unflavored or flavored whole
milk, lowfat milk, skim milk, or cultured buttermilk which meet State
and local standards for such milk except that, in the meal pattern for
infants (0 to 1 year of age), milk means breast milk or iron-fortified
infant formula. In Alaska, Hawaii, American Samoa, Guam, Puerto Rico,
the Trust Territory of the Pacific Islands, and the Virgin Islands, if a
sufficient supply of such types of fluid milk cannot be obtained,
``milk'' shall include reconstituted or recombined milk. All milk should
contain vitamins A and D at levels specified by the Food and Drug
Administration and consistent with State and local standards for such
milk.
National School Lunch Program means the Program authorized by the
National School Lunch Act.
Net cash resources means all monies as determined in accordance with
the State agency's established accounting system, that are available to
or have accrued to a School Food Authority's nonprofit school food
service at any given time, less cash payable. Such monies may include
but are not limited to, cash on hand, cash receivable, earnings or
investments, cash on deposit and the value of stocks, bonds or other
negotiable securities.
[[Page 93]]
Nonprofit means, when applied to schools or institutions eligible
for the Program, exempt from income tax under section 501(c)(3) of the
Internal Revenue Code of 1986.
Nonprofit school food service means all food service operations
conducted by the School Food Authority principally for the benefit of
school children, all of the revenue from which is used solely for the
operation or improvement of such food service.
Nonprofit school food service account means the restricted account
in which all of the revenue from all food service operations conducted
by the school food authority principally for the benefit of school
children is retained and used only for the operation or improvement of
the nonprofit school food service.
Nonprofit when applied to schools or institutions eligible for the
Program means exempt from income tax under section 501(c)(3) of the
Internal Revenue Code of 1954, as amended; or in the Commonwealth of
Puerto Rico, certified by the Governor.
Nutrient Standard Menu Planning/Assisted Nutrient Standard Menu
Planning means ways to develop breakfast menus based on the analysis for
nutrients in the menu items and foods offered over a school week to
determine if specific levels for a set of key nutrients and calories
were met in accordance with Sec. 220.8(e)(5). However, for the purposes
of Assisted Nutrient Standard Menu Planning, breakfast menu planning and
analysis are completed by other entities and must incorporate the
production quantities needed to accommodate the specific service
requirements of a particular school or school food authority in
accordance with Sec. 220.8(f).
OA means the Office of Audit of the Department.
OI means the Office of Investigation of the Department.
OIG means the Office of the Inspector General of the Department.
Program means the School Breakfast Program.
Reduced price breakfast means a breakfast which meets all of the
following criteria: (1) The price shall be less than the full price of
the breakfast, (2) the price shall be 30 cents or lower, and (3) neither
the child nor any member of his family shall be required to supply an
equivalent value in work for the school or the school's food service.
Reimbursement means financial assistance paid or payable to
participating schools for breakfasts meeting the requirements of Sec.
220.8 served to eligible children at rates assigned by the State agency,
or FNSRO where applicable. The term ``reimbursement'' also includes
financial assistance made available through advances to School Food
Authorities.
Revenue when applied to nonprofit school food service means all
monies received by or accruing to the nonprofit school food service in
accordance with the State agency's established accounting system
including, but not limited to, children's payments, earnings on
investments, other local revenues, State revenues, and Federal cash
reimbursements.
School means: (1) An educational unit of high school grade or under,
recognized as part of the educational system in the State and operating
under public or nonprofit private ownership in a single building or
complex of buildings; (2) any public or nonprofit private classes of
preprimary grade when they are conducted in the aforementioned schools;
or (3) any public or nonprofit private residential child care
institution, or distinct part of such institution, which operates
principally for the care of children, and, if private, is licensed to
provide residential child care services under the appropriate licensing
code by the State or a subordinate level of government, except for
residential summer camps which participate in the Summer Food Service
Program for Children, Job Corps centers funded by the Department of
Labor, and private foster homes. The term ``residential child care
institutions'' includes, but is not limited to: Homes for the mentally,
emotionally or physically impaired, and unmarried mothers and their
infants; group homes; halfway houses; orphanages; temporary shelters for
abused children and for runaway children; long-term care facilities for
chronically ill children; and juvenile
[[Page 94]]
detention centers. A long-term care facility is a hospital, skilled
nursing facility, intermediate care facility, or distinct part thereof,
which is entended for the care of children confined for 30 days or more.
School Breakfast Program means the program authorized by section 4
of the Child Nutrition Act of 1966.
School in severe need means a school determined to be eligible for
rates of reimbursement in excess of the prescribed National Average
Payment Factors, based upon the criteria set forth in Sec. 220.9(e).
School Food Authority means the governing body which is responsible
for the administration of one or more schools and which has legal
authority to operate a breakfast program therein.
School week means the period of time used to determine compliance
with the nutrition standards and the appropriate calorie and nutrient
levels in Sec. 220.8. Further, if applicable, school week is the basis
for conducting Nutrient Standard Menu Planning or Assisted Nutrient
Standard Menu Planning for breakfasts as provided in Sec. 220.8(e) and
Sec. 220.8(f). The period shall be a normal school week of five
consecutive days; however, to accommodate shortened weeks resulting from
holidays and other scheduling needs, the period shall be a minimum of
three consecutive days and a maximum of seven consecutive days. Weeks in
which school breakfasts are offered less than three times shall be
combined with either the previous or the coming week.
Secretary means the Secretary of Agriculture.
State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
State agency means: (1) The State educational agency or (2) such
other agency of the State as has been designated by the Governor or
other appropriate executive or legislative authority of the State and
approved by the Department to administer the Program in schools as
described in paragraph (3) of the definition of School in this section.
State educational agency means, as the State legislature may
determine: (1) The chief State school officer (such as the State
Superintendent of Public Instruction, Commissioner of Education, or
similar officer), or (2) a board of education controlling the State
department of education.
Yogurt means commercially prepared coagulated milk products obtained
by the fermentation of specific bacteria, that meet milk fat or milk
solid requirements and to which flavoring foods or ingredients may be
added. These products are covered by the Food and Drug Administration's
Definition and Standard of Identity for yogurt, lowfat yogurt, and
nonfat yogurt, 21 CFR 131.200, 21 CFR 131.203, and 21 CFR 131.206,
respectively.
(Sec. 6, Pub. L. 95-627, 92 Stat. 3620 (42 U.S.C. 1760); sec. 205, Pub.
L. 96-499, The Omnibus Reconciliation Act of 1980, 94 Stat. 2599; secs.
801, 803, 812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753, 1759(a),
1773, 1758; secs. 807 and 808, Pub. L. 97-35, 95 Stat. 521-535, 42
U.S.C. 1772, 1784, 1760; sec. 819, Pub. L. 97-35; 95 Stat. 533 (42
U.S.C. 1759a, 1773 and 1757))
[Amdt. 25, 41 FR 34758, Aug. 17, 1976]
Editorial Note: For Federal Register citations affecting Sec.
220.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 220.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program covered by this part. Within FNS,
CND shall be responsible for administration of the Program.
(b) Within the States, responsibility for the administration of the
Program in schools as described in paragraphs (1) and (2) of the
definition of School in Sec. 220.2 shall be in the State educational
agency, except that FNSRO shall administer the Program with respect to
nonprofit private schools and adding in their place the words ``as
described in paragraph (1) of the definition of School in Sec. 220.2 in
any State wherein the State educational agency is not permitted by law
to disburse Federal funds paid to it under the Program; Provided,
however, That FNSRO shall
[[Page 95]]
also administer the Program in all other nonprofit private schools which
have been under continuous FNS administration since October 1, 1980,
unless the administration of such private schools is assumed by a State
agency.
(c) Within the States, responsibility for the administration of the
Program in schools, as described in paragraph (3) of the definition of
School in Sec. 220.2, shall be in the State educational agency, or if
the State educational agency cannot administer the Program in such
schools, such other agency of the State as has been designated by the
Governor or other appropriate executive or legislative authority of the
State and approved by the Department to administer the Program in such
schools: Provided, however, That FNSRO shall administer the Program in
such schools if the State agency is not permitted by law to disburse
Federal funds paid to it under the Program to such schools; and
Provided, further, That FNSRO shall also administer the Program in all
other such schools which have been under continuous FNS administration
since October 1, 1980, unless the administration of such schools is
assumed by a State agency.
(d) References in this part to ``FNSRO where applicable'' are to
FNSRO as the agency administering the Program.
(e) Each State agency desiring to take part in any of the programs
shall enter into a written agreement with the Department for the
administration of the Program in the State in accordance with the
provisions of this part, 7 CFR parts 235, 245, 15, 15a, 15b and, as
applicable, 7 CFR part 3015, 7 CFR part 3016 and 7 CFR part 3019, and
with FNS Instructions. Such agreement shall cover the operation of the
Program during the period specified therein and may be extended at the
option of the Department.
(Sec. 804, 816 and 817, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753,
1756, 1759, 1771 and 1785); 44 U.S.C. 3506)
[Amdt. 25, 41 FR 34759, Aug. 17, 1976, as amended at 47 FR 745, Jan. 7,
1982; Amdt. 42, 47 FR 14133, Apr. 2, 1982; Amdt. 56, 54 FR 2990, Jan.
23, 1989; 71 FR 39517, July 13, 2006; 72 FR 63792, Nov. 13, 2007]
Sec. 220.4 Payment of funds to States and FNSROs.
(a) To the extent funds are available, the Secretary shall make
breakfast assistance payments to each State agency for breakfasts served
to children under the Program. Subject to Sec. 220.13(b)(2), the total
of these payments for each State for any fiscal year shall be limited to
the total amount of reimbursement payable to eligible schools within the
State under this part for the fiscal year.
(b) The Secretary shall prescribe by July 1 of each fiscal year
annual adjustments to the nearest one-fourth cent in the national
average per breakfast factors for all breakfasts and for free and
reduced price breakfasts, that shall reflect changes in the cost of
operating a breakfast program.
(c) In addition to the funds made available under paragraph (a) of
this section, funds shall be made available to the State agencies, and
FNSROs where applicable, in such amounts as are needed to finance
reimbursement rates assigned in accordance with the provisions of Sec.
220.9(c).
(Secs. 801, 803, 812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753,
1759(a), 1773, 1758); Pub. L. 97-370, 96 Stat. 1806)
[38 FR 35554, Dec. 28, 1973, as amended at 40 FR 30923, July 24, 1975;
46 FR 51367, Oct. 20, 1981; 48 FR 20896, May 10, 1983; Amdt. 49, 49 FR
18987, May 4, 1984]
Sec. 220.5 Method of payment to States.
Funds to be paid to any State for the School Breakfast Program shall
be made available by means of Letters of Credit issued by FNS in favor
of the State agency. The State agency shall:
(a) Obtain funds needed for reimbursement to School Food Authorities
through presentation by designated State officials of a payment Voucher
on Letter of Credit in accordance with procedures prescribed by FNS and
approved by the U.S. Treasury Department; (b) submit requests for funds
only at such times and in such amounts, as will permit prompt payment of
claims or authorized advances; and (c) use the funds received from such
requests without delay for the purpose for which drawn.
[Amdt. 25, 41 FR 34759, Aug. 17, 1976]
[[Page 96]]
Sec. 220.6 Use of funds.
(a) Federal funds made available under the School Breakfast Program
shall be used by State agencies, or FNSROs where applicable, to
reimburse or make advance payments to School Food Authorities in
connection with breakfasts served in accordance with the provisions of
this part. However, with the approval of FNS, any State agency, or FNSRO
where applicable, may reserve for use in carrying out special
developmental projects an amount up to 1 per centum of the funds earned
in any fiscal year under the School Breakfast Program. Advance payments
to School Food Authorities may be made at such times and in such amounts
as are necessary to meet current obligations.
(b) Whoever embezzles, willfully misapplies, steals, or obtains by
fraud any funds, assets, or property provided under this part, whether
received directly or indirectly from the Department, shall--
(1) If such funds, assets, or property are of a value of $100 or
more, be fined not more than $25,000 or imprisoned not more than 5 years
or both; or
(2) If such funds, assets, or property are of a value of less than
$100, be fined not more than $1,000 or imprisoned not more than one year
or both.
(c) Whoever receives, conceals, or retains to his use or gain funds,
assets, or property provided under this part, whether received directly
or indirectly from the Department, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud, shall be subject to the same penalties provided in paragraph
(b) of this section.
(Sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760); sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626)
[40 FR 30923, July 24, 1975, as amended by Amdt. 25, 41 FR 34759, Aug.
17, 1976; Amdt. 28, 44 FR 37899, June 29, 1979; 64 FR 50742, Sept. 20,
1999]
Sec. 220.7 Requirements for participation.
(a) The School Food Authority shall make written application to the
State agency, or FNSRO where applicable, for any school in which it
desires to operate the School Breakfast Program, if such school did not
participate in the Program in the prior fiscal year. The School Food
Authority shall also submit for approval, either with the application or
at the request of the State agency, or FNSRO where applicable, a free
and reduced price policy statement in accordance with part 245 of this
chapter. A School Food Authority which simultaneously makes application
for the National School Lunch Program and the School Breakfast Program
shall submit one free and reduced price policy statement which shall
provide that the terms, conditions, and eligibility criteria set forth
in such policy statement shall apply to the service of free and reduced
price lunches and to the service of free and reduced price breakfasts.
If, at the time application is made for the School Breakfast Program, a
School Food Authority has an approved free and reduced price policy
statement on file with the State agency, or FNSRO where applicable, for
the National School Lunch Program, it need only confirm in writing that
such approved policy statement will also apply to the operation of its
School Breakfast Program. Applications for the School Breakfast Program
shall not be approved in the absence of an approved free and reduced
price policy statement.
(1) A school which also either participates in the National School
Lunch Program or only receives donations of commodities for its
nonprofit lunch program under the provisions of part 250 of this chapter
(commodity only school) shall apply the same set of eligibility criteria
so that children who are eligible for free lunches shall also be
eligible for free breakfasts and children who are eligible for reduced
price lunches shall also be eligible for reduced price breakfasts.
(2) Schools shall obtain a minimum of two food safety inspections
per school year conducted by a State or local governmental agency
responsible for food safety inspections. Schools participating in more
than one child nutrition program shall only be required to obtain a
minimum of two food safety inspections per school year if the food
preparation and service for all meal programs take place at the
[[Page 97]]
same facility. Schools shall post in a publicly visible location a
report of the most recent inspection conducted, and provide a copy of
the inspection report to a member of the public upon request.
(b) Applications shall solicit information in sufficient detail to
enable the State agency to determine whether the School Food Authority
is eligible to participate in the Program and extent of the need for
Program payments.
(c) Within the funds available to them, State agencies, or FNSRO's
where applicable, shall approve for participation in the School
Breakfast Program any school making application and agreeing to carry
out the program in accordance with this part. State agencies, or FNSRO's
where applicable, have a positive obligation, however, to extend the
benefits of the School Breakfast Program to children attending schools
in areas where poor economic conditions exist.
(d)(1) Any school food authority (including a State agency acting in
the capacity of a school food authority) may contract with a food
service management company to manage its food service operation in one
or more of its schools. However, no school or school food authority may
contract with a food service management company to operate an a la carte
food service unless the company agrees to offer free, reduced price and
paid reimbursable breakfasts to all eligible children. Any school food
authority that employs a food service management company in the
operation of its nonprofit school food service shall:
(i) Adhere to the procurement standards specified in Sec. 220.16
when contracting with the food service management company;
(ii) Ensure that the food service operation is in conformance with
the school food authority's agreement under the Program;
(iii) Monitor the food service operation through periodic on-site
visits;
(iv) Retain control of the quality, extent, and general nature of
its food service, and the prices to be charged the children for meals;
(v) Retain signature authority on the State agency-school food
authority agreement, free and reduced price policy statement and claims;
(vi) Ensure that all federally donated foods received by the school
food authority and made available to the food service management company
accrue only to the benefit of the school food authority's nonprofit
school food service and are fully utilized therein;
(vii) Maintain applicable health certification and assure that all
State and local regulations are being met by a food service management
company preparing or serving meals at a school food authority facility;
(viii) Obtain written approval of invitations for bids and requests
for proposals before their issuance when required by the State agency.
The school food authority must incorporate all State agency required
changes to its solicitation documents before issuing those documents;
and
(ix) Ensure that the State agency has reviewed and approved the
contract terms and the school food authority has incorporated all State
agency required changes into the contract or amendment before any
contract or amendment to an existing food service management company
contract is executed. Any changes made by the school food authority or a
food service management company to a State agency pre-approved prototype
contract or State agency approved contract term must be approved in
writing by the State agency before the contract is executed. When
requested, the school food authority must submit all procurement
documents, including responses submitted by potential contractors, to
the State agency, by the due date established by the State agency.
(2) In addition to adhering to the procurement standards under this
part, school food authorities contracting with food service management
companies shall ensure that:
(i) The invitation to bid or request for proposal contains a 21-day
cycle menu developed in accordance with the provisions of Sec. 220.8,
to be used as a standard for the purpose of basing bids or estimating
average cost per meal. A school food authority with no capability to
prepare a cycle menu may, with State agency approval, require
[[Page 98]]
that each food service management company include a 21-day cycle menu,
developed in accordance with the provisions of Sec. 220.8, with its bid
or proposal. The food service management company must adhere to the
cycle for the first 21 days of meal service. Changes thereafter may be
made with the approval of the school food authority; and
(ii) Any invitation to bid or request for proposal indicate that
nonperformance subjects the food service management company to specified
sanctions in instances where the food service management company
violates or breaches contract terms. The school food authority shall
indicate these sanctions in accordance with the procurement provisions
stated in Sec. 220.16.
(3) Contracts that permit all income and expenses to accrue to the
food service management company and ``cost-plus-a-percentage-of-cost''
and ``cost-plus-a-percentage-of-income'' contracts are prohibited.
Contracts that provide for fixed fees such as those that provide for
management fees established on a per meal basis are allowed. Contractual
agreements with food service management companies shall include
provisions which ensure that the requirements of this section are met.
Such agreements shall also include the following requirements:
(i) The food service management company shall maintain such records
as the school food authority will need to support its Claim for
Reimbursement under this part, and shall, at a minimum, report claim
information to the school food authority promptly at the end of each
month. Such records shall be made available to the school food
authority, upon request, and shall be available for a period of 3 years
from the date of the submission of the final Financial Status Report,
for inspection and audit by representatives of the State agency, of the
Department, and of the Government Accountability Office at any
reasonable time and place. If audit findings have not been resolved, the
records shall be retained beyond the three-year period (as long as
required for the resolution of the issues raised by the audit);
(ii) The food service management company shall have State or local
health certification for any facility outside the school in which it
proposes to prepare meals and the food service management company shall
maintain this health certification for the duration of the contract; and
(iii) No payment is to be made for meals that are spoiled or
unwholesome at time of delivery, do not meet detailed specifications as
developed by the school food authority for each food component specified
in Sec. 220.8, or do not otherwise meet the requirements of the
contract. Specifications shall cover items such a grade, purchase units,
style, condition, weight, ingredients, formulations, and delivery time.
(4) The contract between a school food authority and food service
management company shall be of a duration of no longer than 1 year and
options for the yearly renewal of the contract shall not exceed 4
additional years. All contracts shall include a termination clause
whereby either party may cancel for cause with 60-day notification.
(e) Each school food authority approved to participate in the
program shall enter into a written agreement with the State agency or
the Department through the FNSRO, as applicable, that may be amended as
necessary. Nothing in the preceding sentence shall be construed to limit
the ability of the State agency or the FNSRO to suspend or terminate the
agreement in accordance with Sec. 220.18. If a single State agency
administers any combination of the Child Nutrition Programs, that State
agency shall provide each SFA with a single agreement with respect to
the operation of those programs. Such agreements shall provide that the
School Food Authority shall, with respect to participating schools under
its jurisdiction:
(1)(i) Maintain a nonprofit school food service; (ii) in accordance
with the financial management system established under Sec. 220.13(i)
of this part, use all revenues received by such food service only for
the operation or improvement of that food service Except that,
facilities, equipment, and personnel support with funds provided to a
school food authority under this part may be used to support a nonprofit
nutrition program for the elderly, including a
[[Page 99]]
program funded under the Older Americans Act of 1965 (42 U.S.C. 3001 et
seq.); (iii) revenues received by the nonprofit school food service
shall not be used to purchase land or buildings or to contruct
buildings; (iv) limit its net cash resources to an amount that does not
exceed three months average expenditure for its nonprofit school food
service or such other amount as may be approved by the State agency; and
(v) observe the limitations on any competitive food service as set forth
in Sec. 220.12 of this part;
(2) Serve breakfasts which meet the minimum requirements prescribed
in Sec. 220.8, during a period designated as the breakfast period by
the school;
(3) Price the breakfast as a unit;
(4) Supply breakfast without cost or at reduced price to all
children who are determined by the School Food Authority to be unable to
pay the full price thereof in accordance with the free and reduced price
policy statements approved under part 245 of this chapter;
(5) Make no discrimination against any child because of his
inability to pay the full price of the breakfasts;
(6) Claim reimbursement at the assigned rates only for breakfasts
served in accordance with the agreement;
(7) Submit Claims for Reimbursement in accordance with Sec. 220.11
of this part and procedures established by the State agency, or FNSRO
where applicable;
(8) Maintain, in the storage, preparation and service of food,
proper sanitation and health standards in conformance with all
applicable State and local laws and regulations, and comply with the
food safety inspection requirement in paragraph (a)(2) of this section;
(9) Purchase, in as large quantities as may be efficiently utilized
in its nonprofit school food service, foods designated as plentiful by
the State Agency, or CFPDO, where applicable;
(10) Accept and use, in as large quantities as may be efficiently
utilized in its nonprofit school food service, such foods as may be
offered as a donation by the Department;
(11) Maintain necessary facilities for storing, preparing, and
serving food;
(12) Maintain a financial management system as prescribed by the
State agency, or FNSRO where applicable;
(13) Upon request, make all accounts and records pertaining to its
nonprofit school food service available to the State agency, to FNS and
to OA for audit or review at a reasonable time and place. Such records
shall be retained for a period of three years after the end of the
fiscal year to which they pertain, except that if audit findings have
not been resolved, the records shall be retained beyond the three-year
period as long as required for the resolution of the issues raised by
the audit;
(14) Retain the individual application for free and reduced price
breakfasts submitted by families for a period of three years after the
end of the fiscal year to which they pertain; and
(15) Comply with the requirements of the Department's regulations
respecting nondiscrimination (7 CFR part 15).
(f) Nothing contained in this part shall prevent the State Agency
from imposing additional requirements for participation in the program
which are not inconsistent with the provisions of this part.
(44 U.S.C. 3506; sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a,
1773 and 1757); Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L.
89-647, 80 Stat. 885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207
(42 U.S.C. 1759))
[32 FR 34, Jan. 5, 1967]
Editorial Note: For Federal Register citations affecting Sec.
220.7, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 220.8 Nutrition standards and menu planning approaches for breakfasts.
(a) What are the nutrition standards for breakfasts for children age
2 and over? School food authorities must ensure that participating
schools provide nutritious and well-balanced breakfasts. For children
age 2 and over, breakfasts, when averaged over a school week, must meet
the nutrition standards and the appropriate nutrient and calorie levels
in this section. The nutrition standards are:
(1) Provision of one-fourth of the Recommended Dietary Allowances
(RDA) for protein, calcium, iron, vitamin A and vitamin C in the
appropriate
[[Page 100]]
levels (see paragraphs (b), (c), (e)(1), or (h) of this section);
(2) Provision of the breakfast energy allowances (calories) for
children in the appropriate levels (see paragraphs (b), (c), (e)(1), or
(h) of this section);
(3) These applicable recommendations of the 1995 Dietary Guidelines
for Americans:
(i) Eat a variety of foods;
(ii) Limit total fat to 30 percent of total calories;
(iii) Limit saturated fat to less than 10 percent of total calories;
(iv) Choose a diet low in cholesterol;
(v) Choose a diet with plenty of grain products, vegetables, and
fruits; and
(vi) Choose a diet moderate in salt and sodium.
(4) These measures of compliance with the applicable recommendations
of the 1995 Dietary Guidelines for Americans:
(i) Limit the percent of calories from total fat to 30 percent of
the actual number of calories offered;
(ii) Limit the percent of calories from saturated fat to less than
10 percent of the actual number of calories offered;
(iii) Reduce sodium and cholesterol levels; and
(iv) Increase the level of dietary fiber.
(5) School food authorities have several ways to plan menus. The
minimum levels of nutrients and calories that breakfasts must offer
depends on the menu planning approach used and the age/grades served.
The menu planning approaches are:
(i) Nutrient standard menu planning (see paragraphs (b) and (e) of
this section);
(ii) Assisted nutrient standard menu planning (see paragraphs (b)
and (f) of this section);
(iii) Traditional food-based menu planning (see paragraphs (c) and
(g)(1) of this section);
(iv) Enhanced food-based menu planning (see paragraphs (c) and
(g)(2) of this section); or
(v) Alternate menu planning as provided for in paragraph (h) of this
section.
(6) Schools must keep production and menu records for the breakfasts
they produce. These records must show how the breakfasts contribute to
the required food components, food items or menu items every day. In
addition, these records must show how the breakfasts contribute to the
nutrition standards in paragraph (a) of this section and the appropriate
calorie and nutrient levels (see paragraphs (c), (d) or (h) of this
section, depending on the menu planning approach used) over the school
week. If applicable, schools or school food authorities must maintain
nutritional analysis records to demonstrate that breakfasts, when
averaged over each school week, meet:
(i) The nutrition standards provided in paragraph (a) of this
section; and
(ii) The nutrient and calorie levels for children for each age or
grade group in accordance with paragraphs (b), (e)(1) of this section or
developed under paragraph (h) of this section.
(b) What are the levels for nutrients and calories for breakfasts
planned under the nutrient standard or assisted nutrient standard menu
planning approaches? (1) The required levels are:
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[GRAPHIC] [TIFF OMITTED] TR09MY00.007
(2) Optional levels are:
[GRAPHIC] [TIFF OMITTED] TR09MY00.008
(3) Schools may also develop a set of nutrient and calorie levels
for a school week. These levels are customized for the age groups of the
children in the particular school.
(c) What are the nutrient and calorie levels for breakfasts planned
under the food-based menu planning approaches?--(1) Traditional
approach. For the traditional food-based menu planning approach, the
required levels are:
[[Page 102]]
[GRAPHIC] [TIFF OMITTED] TR09MY00.009
(2) Enhanced approach. For the enhanced food-based menu planning
approach, the required levels are:
[GRAPHIC] [TIFF OMITTED] TR09MY00.010
(d) Exceptions and variations allowed in reimbursable breakfasts--
(1) Exceptions for disability reasons. Schools must make substitutions
in breakfasts for students who are considered to have a disability under
7 CFR part 15b.3 and whose disability restricts their diet.
Substitutions must be made on a case by case basis only when supported
by a written statement of the need for substitutions that includes
recommended alternate foods, unless otherwise exempted by FNS. Such
statement must be signed by a licensed physician.
(2) Exceptions for non-disability reasons. Schools may make
substitutions for students without disabilities who cannot consume the
breakfast because of medical or other special dietary needs.
Substitutions must be made on a case by case basis only when supported
by a written statement of the need for substitutions that includes
recommended alternate foods, unless otherwise exempted by FNS. Except
with respect to substitutions for fluid milk, such statement must be
signed by a recognized medical authority.
(i) Milk substitutions for non-disability reasons. Schools may make
substitutions for fluid milk for non-disabled students who cannot
consume fluid milk due to medical or special dietary needs. A school
that selects this option may offer the nondairy beverage(s) of its
choice, provided the beverage(s)
[[Page 103]]
meet the nutritional standards established in paragraph (i)(3) of this
section. Expenses incurred in providing substitutions for fluid milk
that exceed program reimbursements must be paid by the school food
authority.
(ii) Requisites for milk substitutions. (A) A school food authority
must inform the State agency if any of its schools choose to offer fluid
milk substitutes other than for students with disabilities; and
(B) A medical authority or the student's parent or legal guardian
must submit a written request for a fluid milk substitute, identifying
the medical or other special dietary need that restricts the student's
diet.
(iii) Substitution approval. The approval for fluid milk
substitution must remain in effect until the medical authority or the
student's parent or legal guardian revokes such request in writing, or
until such time as the school changes its substitution policy for non-
disabled students.
(3) Variations for ethnic, religious, or economic reasons. Schools
should consider ethnic and religious preferences when planning and
preparing breakfasts. Variations on an experimental or continuing basis
in the food components for the food-based menu planning approaches in
paragraph (g) may be allowed by FNS. Any variations must be
nutritionally sound and needed to meet ethnic, religious, or economic
needs.
(4) Exceptions for natural disasters. If there is a natural disaster
or other catastrophe, FNS may temporarily allow schools to serve
breakfasts for reimbursement that do not meet the requirements in this
section.
(e) What are the requirements for the nutrient standard menu
planning approach?--(1) Nutrient levels.--(i) Adjusting nutrient levels
for young children. Schools with children who are age 2 must at least
meet the nutrition standards in paragraph (a) of this section and the
preschool nutrient and calorie levels in paragraph (b)(1) of this
section over a school week. Schools may also use the preschool nutrient
and calorie levels in paragraph (b)(2) of this section or may calculate
nutrient and calorie levels for two year olds. FNS has a method for
calculating these levels in menu planning guidance materials.
(ii) Minimum levels for nutrients. Breakfasts must at least offer
the nutrient and calorie levels for the required grade groups in the
table in paragraph (b)(1) of this section. Schools may also offer
breakfasts meeting the nutrient and calorie levels for the age groups in
paragraph (b)(2) of this section. If only one grade or age group is
outside the established levels, schools may follow the levels for the
majority of the children. Schools may also customize the nutrient and
calorie levels for the children they serve. FNS has a method for
calculating these levels in guidance materials for menu planning.
(2) Reimbursable breakfasts.--(i) Contents of a reimbursable
breakfast. A reimbursable breakfast must include at least three menu
items. All menu items or foods offered in a reimbursable breakfast
contribute to the nutrition standards in paragraph (a) of this section
and to the levels of nutrients and calories that must be met in
paragraphs (c) or (e)(1) of this section. Unless offered as part of a
menu item in a reimbursable breakfast, foods of minimal nutritional
value (see appendix B to part 220) are not included in the nutrient
analysis. Reimbursable breakfasts planned under the nutrient standard
menu planning approach must meet the nutrition standards in paragraph
(a) of this section and the appropriate nutrient and calorie levels in
paragraph (b) or (e)(1) of this section.
(ii) Offer versus serve. Schools must offer at least three menu
items. At their option, school food authorities may allow students to
select only two menu items and to decline a maximum of one menu item.
The price of a reimbursable breakfast does not change if the student
does not take a menu item or requests smaller portions.
(3) Doing the analysis. Schools using nutrient standard menu
planning must conduct the analysis on all menu items and foods offered
in a reimbursable breakfast. The analysis is conducted over a school
week. Unless offered as part of a menu item in a reimbursable breakfast,
foods of minimal nutritional value (see appendix B to part 220) are not
included in the nutrient analysis.
[[Page 104]]
(4) Software elements.--(i) The Child Nutrition Database. The
nutrient analysis is based on the Child Nutrition Database. This
database is part of the software used to do a nutrient analysis.
Software companies or others developing systems for schools may contact
FNS for more information about the database.
(ii) Software evaluation. FNS or an FNS designee evaluates any
nutrient analysis software before it may be used in schools. FNS or its
designee determines if the software, as submitted, meets the minimum
requirements. The approval of software does not mean that FNS or USDA
endorses it. The software must be able to do all functions after the
basic data is entered. The required functions include weighted averages
and the optional combined analysis of the lunch and breakfast programs.
(5) Nutrient analysis procedures.--(i) Weighted averages. Schools
must include all menu items and foods offered in reimbursable breakfasts
in the nutrient analysis. Menu items and foods are included based on the
portion sizes and projected serving amounts. They are also weighted
based on their proportionate contribution to the breakfasts offered.
This means that menu items or foods more frequently offered are weighted
more heavily than those not offered as frequently. Schools calculate
weighting as indicated by FNS guidance and by the guidance provided by
the software. Through September 30, 2009, schools are not required to
conduct a weighted analysis.
(ii) Analyzed nutrients. The analysis includes all menu items and
foods offered over a school week. The analysis must determine the levels
of: Calories, protein, vitamin A, vitamin C, iron, calcium, total fat,
saturated fat, sodium, cholesterol and dietary fiber.
(iii) Combining the analysis of the lunch and breakfast programs. At
their option, schools may combine the analysis of breakfasts offered
under this part and lunches offered under part 210 of this chapter. The
analysis is done proportionately to the levels of participation in each
program based on FNS guidance.
(6) Comparing the results of the nutrient analysis. Once the
procedures in paragraph (i)(5) of this section are completed, schools
must compare the results of the analysis to the appropriate nutrient and
calorie levels, by age/grade groups, in paragraph (b) of this section or
those developed under paragraph (e)(1) of this section. This comparison
determines the school week's average. Schools must also make comparisons
to the nutrition standards in paragraph (a) of this section to determine
how well they are meeting the nutrition standards over the school week.
(7) Adjustments to the menus. Once schools know the results of the
nutrient analysis based on the procedures in paragraphs (e)(5) and
(e)(6) of this section, they must adjust future menu cycles to reflect
production and how often the menu items and foods are offered. Schools
may need to reanalyze menus when the students' selections and,
consequently, production levels change. Schools may need to change the
menu items and foods offered given the students' selections and may need
to modify the recipes and other specifications to make sure that the
nutrition standards in paragraph (a) and either paragraph (b) or (e)(1)
of this section are met.
(8) Standardized recipes. If a school follows the nutrient standard
menu planning approach, it must develop and follow standardized recipes.
A standardized recipe is a recipe that was tested to provide an
established yield and quantity using the same ingredients for both
measurement and preparation methods. Any standardized recipes developed
by USDA/FNS are in the Child Nutrition Database. If a school has its own
recipes, they must be standardized and analyzed to determine the levels
of calories, nutrients, and dietary components listed in paragraph
(e)(5)(ii) of this section. Schools must add any local recipes to their
local database as outlined in FNS guidance.
(9) Processed foods. The Child Nutrition Database includes a number
of processed foods. Schools may use purchased processed foods and menu
items that are not in the Child Nutrition Database. Schools or the State
agency must add any locally purchased processed foods and menu items to
their
[[Page 105]]
local database as outlined in FNS guidance. Schools or State agencies
must obtain the levels of calories, nutrients, and dietary components
listed in paragraph (e)(5)(ii) of this section.
(10) Menu substitutions. Schools may need to substitute foods or
menu items in a menu that was already analyzed. If the substitution(s)
occurs more than two weeks before the planned menu is served, the school
must reanalyze the revised menu. If the substitution(s) occurs two weeks
or less before the planned menu is served, the school does not need to
do a reanalysis. However, schools should always try to substitute
similar foods.
(11) Meeting the nutrition standards. The school's analysis shows
whether their menus are meeting the nutrition standards in paragraph (a)
of this section and the appropriate levels of nutrients and calories in
paragraph (b) of this section or customized levels developed under
paragraph (e)(1) of this section. If the analysis shows that the menu(s)
are not meeting these standards, the school needs to take action to make
sure that the breakfasts meet the nutrition standards and the calorie,
nutrient, and dietary component levels. Actions may include technical
assistance and training and may be taken by the State agency, the school
food authority or by the school as needed.
(12) Other Child Nutrition Programs and nutrient standard analysis
menu planning. School food authorities that operate the Summer Food
Service Program (part 225 of this chapter) and/or the Child and Adult
Care Food Program (part 226 of this chapter) may, with State agency
approval, prepare breakfasts for these programs using the nutrient
standard menu planning approach for children age two and over. FNS has
guidance on the levels of nutrient and calories for adult breakfasts
offered under the Child and Adult Care Food Program.
(f) What are the requirements for the assisted nutrient standard
menu planning approach?--(1) Definition of assisted nutrient standard
menu planning. Some school food authorities may not be able to do all of
the procedures necessary for nutrient standard menu planning. The
assisted nutrient standard menu planning approach provides schools with
menu cycles developed and analyzed by other sources. These sources
include the State agency, other schools, consultants, or food service
management companies.
(2) Elements of assisted nutrient standard menu planning. School
food authorities using menu cycles developed under assisted nutrient
standard menu planning must follow the procedures in paragraphs (e)(1)
through (e)(10) of this section. The menu cycles must also incorporate
local food preferences and accommodate local food service operations.
The menu cycles must meet the nutrition standards in paragraph (a) of
this section and meet the applicable nutrient and calorie levels for
nutrient standard menu planning in paragraphs (b) or (e)(1) of this
section. The supplier of the assisted nutrient standard menu planning
approach must also develop and provide recipes, food product
specifications, and preparation techniques. All of these components
support the nutrient analysis results of the menu cycles used by the
receiving school food authorities.
(3) State agency approval. Prior to its use, the State agency must
approve the initial menu cycle, recipes and other specifications of the
assisted nutrient standard menu planning approach. The State agency
needs to make sure all the steps required for nutrient analysis were
followed. School food authorities may also ask the State agency for
assistance with implementation of their assisted nutrient standard menu
planning approach.
(4) Required adjustments. After the initial service of the menu
cycle developed under the assisted nutrient standard menu planning
approach, the nutrient analysis must be reassessed and appropriate
adjustments made as discussed in paragraph (e)(7) of this section.
(5) Final responsibility for meeting the nutrition standards. The
school food authority using the assisted nutrient standard menu planning
approach retains final responsibility for meeting the nutrition
standards in paragraph (a) of this section and the applicable calorie
and nutrient levels in paragraphs (b) or (e)(1) of this section.
[[Page 106]]
(6) Adjustments to the menus. If the nutrient analysis shows that
the breakfasts offered are not meeting the nutrition standards in
paragraph (a) of this section and the applicable calorie and nutrient
levels in paragraphs (b) or (e)(1) of this section, the State agency,
school food authority or school must take action to make sure the
breakfasts offered meet these requirements. Actions needed include
technical assistance and training.
(7) Other Child Nutrition Programs and assisted nutrient analysis
menu planning. School food authorities that operate the Summer Food
Service Program (part 225 of this chapter) and/or the Child and Adult
Care Food Program (part 226 of this chapter) may, with State agency
approval, prepare breakfasts for these programs using the assisted
nutrient standard menu planning approach for children age two and over.
FNS has guidance on the levels of nutrients and calories for adult
breakfasts offered under the Child and Adult Care Food Program.
(g) What are the requirements for the food-based menu planning
approaches?--(1) Food items. There are two menu planning approaches
based on meal patterns, not nutrient analysis. These approaches are the
traditional food-based menu planning approach and the enhanced food-
based menu planning approach. Schools using one of these approaches must
offer these food items in at least the portions required for various
age/grade groups:
(i) A serving of fluid milk as a beverage or on cereal or used
partly for both;
(ii) A serving of fruit or vegetable or both, or full-strength fruit
or vegetable juice; and
(iii) Two servings from one of the following components or one
serving from each component:
(A) Grains/breads; and/or
(B) Meat/meat alternate.
(2) Quantities for the traditional food-based menu planning
approach. At a minimum, schools must offer the food items in the
quantities specified for the appropriate age/grade group in the
following table:
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[GRAPHIC] [TIFF OMITTED] TR09MY00.011
(3) Quantities for the enhanced food-based menu planning approach.
At a minimum, schools must offer the food items in the quantities
specified for the appropriate age/grade group in the following table:
[[Page 108]]
[GRAPHIC] [TIFF OMITTED] TR09MY00.012
(4) Offer versus serve. Each school must offer all four required
food items listed in paragraph (g)(1) of this section. At the option of
the school food authority, each school may allow students to refuse one
food item from any component. The refused food item may be any of the
four items offered to the student. A student's decision to accept all
four food items or to decline one of the four food items must not affect
the charge for a reimbursable breakfast.
(5) Meal pattern exceptions for outlying areas. Schools in American
Samoa, Puerto Rico and the Virgin Islands may serve a starchy vegetable
such as yams, plantains, or sweet potatoes to meet the grain/bread
requirement.
(h) What are the requirements for alternate menu planning
approaches?--(1) Definition. Alternate menu planning approaches are
those adopted or developed by school food authorities or State agencies
that differ from the standard approaches established in paragraphs (e)
through (g) of this section.
(2) Use and approval of major changes or new alternate approaches.
Within the guidelines established for developing alternate menu planning
approaches, school food authorities or State agencies may modify one of
the established
[[Page 109]]
menu planning approaches in paragraphs (e) through (g) of this section
or may develop their own menu planning approach. The alternate menu
planning approach must be available in writing for review and monitoring
purposes. No formal plan is required; guidance material, a handbook or
protocol is sufficient. As appropriate, the material must address how
the guidelines in paragraph (h)(3) of this section are met. A State
agency that develops an alternate approach that is exempt from FNS
approval under paragraph (h)(2)(iii) of this section must notify FNS in
writing when implementing the alternate approach.
(i) Approval of local level plans. Any school food authority-
developed menu planning approach must have prior State agency review and
approval.
(ii) Approval of State agency plans. Unless exempt under paragraph
(h)(2)(iii) of this section, any State agency-developed menu planning
approach must have prior FNS approval.
(iii) State agency plans not subject to approval. A State agency-
developed menu planning approach does not need FNS approval if:
(A) Five or more school food authorities in the State use it; and
(B) The State agency maintains on-going oversight of the operation
and evaluation of the approach and makes any needed adjustments to its
policies and procedures to ensure that the appropriate guidelines in
paragraph (h)(3) of this section are met.
(3) Elements for major changes or new approaches. Any alternate menu
planning approach must:
(i) offer fluid milk, as provided in paragraph (i) of this section;
(ii) include the procedures for offer versus serve if the school
food authority chooses to implement the offer versus serve option.
Alternate approaches should follow the offer versus serve procedures in
paragraphs (e)(2)(ii) and (g)(4) of this section, as appropriate. If
these requirements are not followed, the approach must indicate:
(A) The affected age/grade groups;
(B) The number and type of items (and, if applicable, the quantities
for the items) that constitute a reimbursable breakfast under offer
versus serve;
(C) How such procedures will reduce plate waste; and
(D) How a reasonable level of calories and nutrients for the
breakfast as taken is provided.
(iii) Meet the Recommended Dietary Allowances and breakfast energy
allowances (nutrient levels) and indicate the age/grade groups served
and how the nutrient levels are met for those age/grade groups;
(iv) Follow the requirements for competitive foods in the definition
of Foods of minimal nutritional value in Sec. 220.2, in Sec. 220.12
and in Appendix B of this part;
(v) Follow the requirements for counting food items and products
towards meeting the meal patterns. These requirements are found in
paragraphs (g) and (i) of this section, in appendices A through C to
this part, and in instructions and guidance issued by FNS. This only
applies if the alternate approach is a food-based menu planning
approach.
(vi) Identify a reimbursable breakfast at the point of service.
(A) To the extent possible, the procedures provided in paragraph
(e)(2)(i) of this section for nutrient standard or assisted nutrient
standard menu planning approaches or for food-based menu planning
approaches provided in paragraph (g) of this section must be followed.
Any instructions or guidance issued by FNS that further defines the
elements of a reimbursable breakfast must be followed when using the
existing regulatory provisions.
(B) Any alternate approach that deviates from the provisions in
paragraph (e)(2)(i) or paragraph (g) of this section must indicate what
constitutes a reimbursable breakfast, including the number and type of
items (and, if applicable, the quantities for the items) which comprise
the breakfast, and how a reimbursable breakfast is to be identified at
the point of service.
(vii) explain how the alternate menu planning approach can be
monitored under the applicable provisions of Sec. 210.18 and Sec.
210.19 of this chapter, including a description of the records that will
be maintained to document compliance with the program's administrative
and nutrition requirements. However, if the procedures under Sec.
210.19 of this chapter cannot be used
[[Page 110]]
to monitor the alternate approach, a description of review procedures
which will enable the State agency to assess compliance with the
nutrition standards in paragraphs (a)(1) through (a)(4) of this section
must be included; and
(viii) follow the requirements for weighted analysis and for
approved software for nutrient standard menu planning as required by
paragraphs (e)(4) and (e)(5) of this section unless a State agency-
developed approach meets the criteria in paragraph (h)(2)(iii) of this
section. Through September 30, 2009, schools are not required to conduct
a weighted analysis.
(i) What are the requirements for offering milk?--(1) Serving milk.
A serving of milk as a beverage or on cereal or used in part for each
purpose must be offered for breakfasts.
(2) Inadequate milk supply. If a school cannot get a supply of milk,
it can still participate in the Program under the following conditions:
(i) If emergency conditions temporarily prevent a school that
normally has a supply of fluid milk from obtaining delivery of such
milk, the State agency may allow the school to serve breakfasts during
the emergency period with an alternate form of milk or without milk.
(ii) If a school is unable to obtain a supply of any type of fluid
milk on a continuing basis, the State agency may allow schools to
substitute canned or dry milk in the required quantities in the
preparation of breakfasts. In Alaska, Hawaii, American Samoa, Guam,
Puerto Rico, and the Virgin Islands, if a sufficient supply of fluid
milk cannot be obtained, ``milk'' includes reconstituted or recombined
milk, or otherwise as allowed by FNS through a written exception.
(3) Milk substitutes. If a school chooses to offer one or more
substitutes for fluid milk for non-disabled students with medical or
special dietary needs, the nondairy beverage(s) must provide the
nutrients listed in the following table. Milk substitutes must be
fortified in accordance with fortification guidelines issued by the Food
and Drug Administration. A school need only offer the nondairy
beverage(s) that it has identified as allowable fluid milk substitutes
according to this paragraph (i)(3).
------------------------------------------------------------------------
Nutrient Per cup
------------------------------------------------------------------------
Calcium.................................. 276 mg.
Protein.................................. 8 g.
Vitamin A................................ 500 IU.
Vitamin D................................ 100 IU.
Magnesium................................ 24 mg.
Phosphorus............................... 222 mg.
Potassium................................ 349 mg.
Riboflavin............................... 0.44 mg.
Vitamin B-12............................. 1.1 mcg.
------------------------------------------------------------------------
(j) What are the requirements for the infant breakfast pattern?--(1)
Feeding breakfasts to infants. Breakfasts served to infants ages birth
through 11 months must meet the requirements described in paragraph
(j)(4) of this section. Foods included in the breakfast must be of a
texture and a consistency that are appropriate for the age of the infant
being served. The foods must be served during a span of time consistent
with the infant's eating habits. For those infants whose dietary needs
are more individualized, exceptions to the meal pattern must be made in
accordance with the requirements found in paragraph (d)(1) of this
section.
(2) Breastmilk and iron-fortified formula. Either breastmilk or
iron-fortified infant formula, or portions of both, must be served for
the entire first year. Meals containing breastmilk and meals containing
iron-fortified infant formula supplied by the school are eligible for
reimbursement. However, infant formula provided by a parent (or
guardian) and breastmilk fed directly by the infant's mother, during a
visit to the school, contribute to a reimbursable breakfast only when
the school supplies at least one component of the infant's meal.
(3) Solid foods. For infants ages 4 through 7 months, solid foods of
an appropriate texture and consistency are required only when the infant
is developmentally ready to accept them. The school should consult with
the infant's parent (or guardian) in making the decision to introduce
solid foods. Solid foods should be introduced one at a time, on a
gradual basis, with the intent of ensuring the infant's health and
nutritional well-being.
(4) Infant meal pattern. Infant breakfasts must have, at a minimum,
each of the food components indicated, in the
[[Page 111]]
amount that is appropriate for the infant's age. For some breastfed
infants who regularly consume less than the minimum amount of breastmilk
per feeding, a serving of less than the minimum amount of breastmilk may
be offered. In these situations, additional breastmilk must be offered
if the infant is still hungry. Breakfasts may include portions of
breastmilk and iron-fortified infant formula as long as the total number
of ounces meets, or exceeds, the minimum amount required of this food
component. Similarly, to meet the component requirement for vegetables
and fruit, portions of both may be served.
(i) Birth through 3 months. 4 to 6 fluid ounces of breastmilk or
iron-fortified infant formula--only breastmilk or iron-fortified formula
is required to meet the infant's nutritional needs.
(ii) 4 through 7 months. Breastmilk or iron-fortified formula is
required. Some infants may be developmentally ready for solid foods of
an appropriate texture and consistency. Breakfasts are reimbursable when
schools provide all of the components in the meal pattern that the
infant is developmentally ready to accept.
(A) 4 to 8 fluid ounces of breastmilk or iron-fortified infant
formula; and
(B) 0 to 3 tablespoons of iron-fortified dry infant cereal.
(iii) 8 through 11 months. Breastmilk or iron-fortified formula and
solid foods of an appropriate texture and consistency are required.
(A) 6 to 8 fluid ounces of breastmilk or iron-fortified infant
formula; and
(B) 2 to 4 tablespoons of iron-fortified dry infant cereal; and
(C) 1 to 4 tablespoons of fruit or vegetable.
(5) Infant meal pattern table. The minimum amounts of food
components to serve to infants, as described in paragraph (j)(4) of this
section, are:
Breakfast Pattern for Infants
------------------------------------------------------------------------
8 through 11
Birth through 3 months 4 through 7 months months
------------------------------------------------------------------------
4-6 fluid ounces of formula \1\ 4-8 fluid ounces 6-8 fluid ounces
or breastmilk 2,3. of formula \1\ or of formula \1\ or
breastmilk 2,3; breastmilk 2,3;
and. and
0-3 tablespoons of 2-4 tablespoons of
infant cereal 1,4. infant cereal
\1\; and
1-4 tablespoons of
fruit or
vegetable or
both.
------------------------------------------------------------------------
\1\ Infant formula and dry infant cereal must be iron-fortified.
\2\ Breastmilk or formula, or portions of both, may be served; however,
it is recommended that breastmilk be served in place of formula from
birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the
minimum amount of breastmilk per feeding, a serving of less than the
minimum amount of breastmilk may be offered, with additional
breastmilk offered if the infant is still hungry.
\4\ A serving of this component is required only when the infant is
developmentally ready to accept it.
(k) What about serving additional foods? Schools may offer
additional foods with breakfasts to children over one year of age.
(l) Must schools offer choices at breakfast? FNS encourages schools
to offer children a selection of foods and menu items at breakfast.
Choices provide variety and encourage consumption. Schools may offer
choices of reimbursable breakfasts or foods within a reimbursable
breakfast. When a school offers a selection of more than one type of
breakfast or when it offers a variety of food components, menu items or
foods and milk for choice as a reimbursable breakfast, the school must
offer all children the same selection(s) regardless of whether the child
is eligible for free or reduced price breakfasts or must pay the
designated full price. The school may establish different unit prices
for each type of breakfast offered provided that the benefits made
available to children eligible for free or reduced price breakfasts are
not affected.
(m) What must schools do about nutrition disclosure? To the extent
that school food authorities identify foods in a menu, or on the serving
line or through other available means of communicating with program
participants, school food authorities must identify products or dishes
containing more than 30 parts fully hydrated alternate protein products
(as specified in appendix A of this part) to less than 70 parts beef,
pork, poultry or seafood on an uncooked basis, in a manner which does
not characterize the product or dish solely as beef, pork, poultry or
seafood. Additionally, FNS encourages schools to inform the students,
parents, and the public about efforts they
[[Page 112]]
are making to meet the nutrition standards (see paragraph (a) of this
section) for school breakfasts.
[65 FR 26923, May 9, 2000, as amended at 65 FR 36317, June 8, 2000; 67
FR 36785, May 28, 2002; 69 FR 70874, Dec. 8, 2004; 72 FR 63792, Nov. 13,
2007; 73 FR 52907, Sept. 12, 2008]
Sec. 220.9 Reimbursement payments.
(a) State agencies, or FNSRO's where applicable, shall make
reimbursement payments to schools only in connection with breakfasts
meeting the requirements of Sec. 220.8, and reported in accordance with
Sec. 220.11(b) of this part. School Food Authorities shall plan for and
prepare breakfasts on the basis of participation trends, with the
objective of providing one breakfast per child per day. Production and
participation records shall be maintained to demonstrate positive action
toward this objective. In recognition of the fluctuation in
participation levels which makes it difficult to precisely estimate the
number of breakfasts needed and to reduce the resultant waste, any
excess breakfasts that are prepared may be served to eligible children
and may be claimed for reimbursement unless the State agency, or FNSRO
where applicable, determines that the School Food Authority has failed
to plan and prepare breakfasts with the objective of providing one
breakfast per child per day. In no event shall the School Food Authority
claim reimbursement for free and reduced price breakfasts in excess of
the number of children approved for free and reduced price meals.
(b) The rates of reimbursement for breakfasts served to eligible
children in schools not in severe need are the applicable national
average payment factors for breakfasts. The maximum rates of
reimbursement for breakfasts served to eligible children in schools
determined to be in severe need are those prescribed by the Secretary.
National average payment factors and maximum rates of reimbursement for
the School Breakfast Program shall be prescribed annually by the
Secretary in the Federal Register.
(c) The total reimbursement for breakfasts served to eligible
children in schools not in severe need, and schools in severe need
during the school year shall not exceed the sum of the products obtained
by multiplying the total numbers of such free, reduced price and paid
breakfasts, respectively, by the applicable rate of reimbursement for
each type of breakfast as prescribed for the school year.
(d) The State agency, or FNSRO where applicable, shall determine
whether a school is in severe need based on the following eligibility
criteria:
(1) The school is participating in or desiring to initiate a
breakfast program; and
(2) At least 40 percent of the lunches served to students at the
school in the second preceding school year were served free or at a
reduced price. Schools that did not serve lunches in the second
preceding year and that would like to receive reimbursement at the
severe need rate may apply to their administering State agency. The
administering State agency shall approve or deny such requests in
accordance with guidance, issued by the Secretary, that determines that
the second preceding school year requirement would otherwise have been
met.
(Sec. 6, Pub. L. 95-627, 92 Stat. 3620 (42 U.S.C. 1776; secs. 801, 803,
812; Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1753, 1759(a), 1758,
1773; sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773 and
1757); 44 U.S.C. 3506))
[Amdt. 25, 41 FR 34760, Aug. 17, 1976, as amended by Amdt. 29, 44 FR
48159, Aug. 17, 1979; Amdt. No. 38, 46 FR 50928, Oct. 16, 1981; 46 FR
51368, Oct. 20, 1981; 47 FR 746, Jan. 7, 1982; 47 FR 31375, July 20,
1982; 48 FR 40196, 40197, Sept. 6, 1983; 60 FR 31222, June 13, 1995; 65
FR 26923, May 9, 2000; 70 FR 66249, Nov. 2, 2005]
Sec. 220.10 Effective date for reimbursement.
Reimbursement payments under the School Breakfast Program may be
made only to School Food Authorities operating under an agreement with
the State Agency or the Department, and may be made only after execution
of the agreement. Such payments may include reimbursement in connection
with breakfasts served in accordance with provisions of the program in
the calendar month preceding the calendar
[[Page 113]]
month in which the agreement is executed.
[32 FR 35, Jan. 5, 1967, as amended by Amdt. 9, 37 FR 9613, May 13,
1972]
Sec. 220.11 Reimbursement procedures.
(a) To be entitled to reimbursement under this part, each School
Food Authority shall submit to the State agency, or FNSRO where
applicable, a monthly Claim for Reimbursement.
(b) Claims for Reimbursement shall include data in sufficient detail
to justify the reimbursement claimed and to enable the State agency to
provide the Reports of School Program Operations required under Sec.
220.13(b)(2). Unless otherwise approved by FNS, the Claim for
Reimbursement for any month shall include only breakfasts served in that
month except if the first or last month of Program operations for any
year contains 10 operating days or less, such month may be added to the
Claim for Reimbursement for the appropriate adjacent month; however,
Claims for Reimbursement may not combine operations occurring in two
fiscal years. If a single State agency administers any combination of
the Child Nutrition Programs, the SFA shall be able to use a common
claim form with respect to claims for reimbursement for meals served
under those programs. A final Claim for Reimbursement shall be
postmarked and/or submitted to the State agency, or FNSRO where
applicable, not later than 60 days following the last day of the full
month covered by the claim. State agencies may establish shorter
deadlines at their discretion. Claims not postmarked and/or submitted
within 60 days shall not be paid with Program funds unless FNS
determines that an exception should be granted. The State agency, or
FNSRO where applicable, shall promptly take corrective action with
respect to any Claim for Reimbursement as determined necessary through
its claim review process or otherwise. In taking such corrective action,
State agencies may make upward adjustments in Program funds claimed on
claims filed within the 60 day deadline if such adjustments are
completed within 90 days of the last day of the claim month and are
reflected in the final Report of School Program Operations (FNS-10) for
the claim month which is required under Sec. 220.13(b)(2). Upward
adjustments in Program funds claimed which are not reflected in the
final FNS-10 for the claim month shall not be made unless authorized by
FNS. Downward adjustments in Program funds claimed shall always be made,
without FNS authorization, regardless of when it is determined that such
adjustments are necessary.
(c) Where a school participates in both the National School Lunch
Program and the School Breakfast Program, the State agency or FNSRO,
where applicable, may authorize the submission of one claim for
reimbursement to cover both programs.
(d) [Reserved]
(e) Notwithstanding any other provision of this section, the State
agency, or FNSRO where applicable, may advance funds available for the
School Breakfast Program to a School Food Authority in an amount equal
to the reimbursement estimated for the total number of breakfasts,
including free and reduced price breakfasts, to be served to children
for 1 month. The State agency, or FNSRO where applicable, shall require
School Food Authorities who receive advances of funds under the
provisions of this paragraph to make timely submissions of claims for
reimbursement on a monthly basis and shall suspend advances of funds in
the absence of such timely submissions. Following the receipt of claims
the State agency, or FNSRO where applicable, shall make such adjustments
as are necessary in such advances of funds to insure that the total
amount of reimbursement received by a School Food Authority for the
fiscal year will not exceed an amount equal to the number of breakfasts,
including free and reduced price breakfast, served to children times the
respective rates of reimbursement assigned by the State
[[Page 114]]
agency, or FNSRO where applicable, in accordance with Sec. 220.9.
(Title 1, Chapter I, Pub. L. 96-38, 93 Stat. 98 (42 U.S.C. 1776a); secs.
807 and 808, Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1772, 1784,
1760; sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773,
1757); Pub. L. 97-370, 96 Stat. 1806)
[32 FR 35, Jan. 5, 1967, as amended by Amdt. 9, 37 FR 9613, May 13,
1972; 40 FR 30924, July 24, 1975; 45 FR 82622, Dec. 16, 1980; 47 FR
31376, July 20, 1982; 48 FR 40196, Sept. 6, 1983; Amdt. 49, 49 FR 18987,
May 4, 1984; 64 FR 50742, Sept. 20, 1999]
Sec. 220.12 Competitive food services.
(a) State agencies and School Food Authorities shall establish such
rules or regulations as are necessary to control the sale of foods in
competition with breakfasts served under the Program. Such rules or
regulations shall prohibit the sale of foods of minimal nutritional
value, as listed in appendix B of this part, in the food service areas
during the breakfast periods. The sale of other competitive foods may,
at the discretion of the State agency and the School Food Authority, be
allowed in the food service area during the breakfast period only if all
income from the sale of such foods accrues to the benefit of the
nonprofit school food service or the school or student organizations
approved by the school. State agencies and School Food Authorities may
impose additional restrictions on the sale of and income from all foods
sold at any time throughout schools participating in the School
Breakfast Program.
(b)(1) Any person may submit a petition to FNS requesting that an
individual food be exempted from a category of foods of minimal
nutritional value listed in appendix B. In the case of artificially
sweetened foods, the petition must include a statement of the percent of
RDI for the eight nutrients listed in the definition of Foods of minimal
nutritional value in Sec. 220.2 that the food provides per serving and
the petitioner's source of this information. In the case of all other
foods, the petition must include a statement of the percent of RDI for
the eight nutrients listed in the definition of Foods of minimal
nutritional value in Sec. 220.2 that the food provides per serving and
per 100 calories and the petitioner's source of this information. The
Department will determine whether or not the individual food is a food
of minimal nutritional value as defined the definition of Foods of
minimal nutritional value in Sec. 220.2, and will inform the petitioner
in writing of such determination, and the public by notice in the
Federal Register as indicated under paragraph (b)(3) of this section. In
determining whether an individual food is a food of minimal nutritional
value, discrete nutrients added to the food will not be taken into
account.
(2) Any person may submit a petition to FNS requesting that foods in
a particular category of foods be classified as meeting the definition
of Foods of minimal nutritional value in Sec. 220.2. The petition must
identify and define the food category in easily understood language,
list examples of the foods contained in the category and include a list
which the foods in that category usually contain. If, upon review of the
petition, the Department determines that the foods in that category
should not be classified as foods of minimal nutritional value, the
petitioner will be so notified in writing. If upon review of the
petition, the Department determines that there is a substantial
likelihood that the foods in that category should be classified as
meeting the definition of Foods of minimal nutritional value in Sec.
220.2, the Department shall at that time inform the petitioner. In
addition, the Department shall publish a proposed rule restricting the
sale of the foods in that category, setting forth the reasons for this
action, and soliciting public comments. On the basis of comments
received within 60 days of publication of the proposed rule and other
available information, the Department will determine whether the
nutrient composition of the foods indicates that the category should be
classified as a category of foods of minimal nutritional value.
The petitioner shall be notified in writing and the public shall be
notified of the Department's final determination upon publication in the
Federal Register as indicated under section (b)(3) of this section.
(3) By May 1 and November 1 of each year, the Department shall amend
appendix B to exclude those individual
[[Page 115]]
foods identified under paragraph (b)(1) of this section, and to include
those categories of foods identified under paragraph (b)(2) of this
section, Provided That there are necessary changes.
(Sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773 and 1757))
[Amdt. 32, 45 FR 6771, Jan. 29, 1980, as amended by Amdt. 34, 45 FR
76937, Nov. 21, 1980; 50 FR 20547, May 17, 1985; 59 FR 23614, May 6,
1994; 72 FR 63792, Nov. 13, 2007]
Sec. 220.13 Special responsibilities of State agencies.
(a) [Reserved]
(a-1) Each State agency, or FNSRO where applicable, shall require
each School Food Authority of a school participating in the School
Breakfast Program to develop and file for approval a free and reduced
price policy statement in accordance with paragraph (a) of Sec. 220.7.
(b) Records and reports. (1) Each State agency shall maintain
Program records as necessary to support the reimbursement payments made
to School Food Authorities under Sec. 220.9 and the reports submitted
to FNS under Sec. 220.13(b)(2). The records may be kept in their
original form or on microfilm, and shall be retained for a period of
three years after the date of submission of the final Financial Status
Report for the fiscal year, except that if audit findings have not been
resolved, the records shall be retained beyond the three-year period as
long as required for the resolution of the issues raised by the audit.
(2) Each State agency shall submit to FNS a final Report of School
Program Operations (FNS-10) for each month which shall be limited to
claims submitted in accordance with Sec. 220.11(b) and which shall be
postmarked and/or submitted no later than 90 days following the last day
of the month covered by the report. States shall not receive Program
funds for any month for which the final report is not submitted within
this time limit unless FNS grants an exception. Upward adjustments to a
State agency's report shall not be made after 90 days from the month
covered by the report unless authorized by FNS. Downward adjustments
shall always be made, without FNS authorization, regardless of when it
is determined that such adjustments are necessary. Adjustments shall be
reported to FNS in accordance with procedures established by FNS. Each
State agency shall also submit to FNS a quarterly Financial Status
Report (SF-269) on the use of Program funds. Such reports shall be
postmarked and/or submitted no later than 30 days after the end of each
fiscal year quarter. Obligations shall be reported only for the fiscal
year in which they occur. A final Financial Status Report for each
fiscal year shall be postmarked and/or submitted to FNS within 120 days
after the end of the fiscal year. FNS shall not be responsible for
reimbursing unpaid Program obligations reported later than 120 days
after the close of the fiscal year in which they were incurred.
(3) For each of school years 2005-2006 through 2008-2009, each State
agency shall monitor school food authority compliance with the food
safety inspection requirement in Sec. 220.7(a)(2) and submit an annual
report to FNS documenting school compliance based on data supplied by
the school food authorities. The report must be filed by November 15
following each of school years 2005-2006 through 2008-2009, beginning
November 15, 2006. The State agency shall keep the records supplied by
the school food authorities showing the number of food safety
inspections obtained by schools for each of school years 2005-2006
through 2008-2009.
(c) Each State agency shall promptly investigate complaints received
or irregularities noted in connection with the operation of either
program, and shall take appropriate action to correct any
irregularities. State Agencies shall maintain on file evidence of such
investigations and actions. FNS or OI shall make investigations at the
request of the State Agency or where FNS or OI determines investigations
are appropriate.
(d) The State agency shall release to FNS any Federal funds made
available to it under the Act which are unobligated at the end of each
fiscal year. Any such funds shall remain available to FNS for the
purposes of the programs authorized by the Act until expended. Release
of funds by the State
[[Page 116]]
Agency shall be made as soon as practicable, but in any event not later
than 30 days following demand by FNSRO and shall be reflected by related
adjustment in the State Agency's Letter of Credit.
(e) State agencies shall provide School Food Authorities with
monthly information on foods available in plentiful supply, based on
information provided by the Department.
(f) Each State agency shall provide program assistance as follows:
(1) Each State agency or FNSRO where applicable shall provide
consultative, technical, and managerial personnel to administer
programs, monitor performance, and measure progress toward achieving
program goals.
(2) State agencies shall conduct reviews of schools participating in
the Program for compliance with the provisions of this part when such
schools are being reviewed under the provisions identified under Sec.
210.18(i) of this title. Compliance reviews of participating schools
shall focus on the reviewed school's compliance with the required
certification, counting and breakfast service procedures. School food
authorities may appeal a denial of all or a part of the Claim for
Reimbursement or withholding of payment arising from review activity
conducted by the State agency under Sec. 210.18 of this title or by FNS
under Sec. 210.30(d)(2) of this title. Any such appeal shall be subject
to the procedures set forth under Sec. 210.18(q) of this title or Sec.
210.30(d)(3) of this title, as appropriate.
(3) For the purposes of compliance with the nutrition standards in
Sec. 220.8(a) and the nutrient and calorie levels in Sec. 220.8(b) or
(c) or those developed under Sec. 220.8(e)(1) or (h), the State agency
shall follow the provisions specified Sec. 210.19(a)(1) of this
chapter.
(4) Such assistance shall include visits to participating schools to
ensure compliance with program regulations and with the Department's
nondiscrimination regulations (part 15 of this title), issued under
title VI, of the Civil Rights Act of 1964.
(5) Documentation of such assistance shall be maintained on file by
the State agency, or FNSRO where applicable.
(g) State agencies shall adequately safeguard all assets and assure
that they are used solely for authorized purposes.
(h) [Reserved]
(i) Each State agency, or FNS where applicable, shall establish a
financial management system under which School Food Authorities shall
account for all revenues and expenditures of their nonprofit school food
service. The system shall prescribe the allowability of nonprofit school
food service expenditures in accordance with this part and 7 CFR part
3015, and 7 CFR part 3016 or 7 CFR part 3019, as applicable. The system
shall permit determination of school food service net cash resources,
and shall include any criteria for approval of net cash resources in
excess of three months average expenditures. In addition, School Food
Authorities shall be required to account separately for other food
services which are operated by the School Food Authority.
(j) During audits, supervisory assistance reviews, or by other
means, State agencies, or FNSROs where applicable, shall be responsible
for monitoring the net cash resources of the nonprofit school food
service of each School Food Authority participating in the Program. In
the event that such resources exceed three months average expenditures
for the School Food Authority's nonprofit school food service, or such
amount as may be approved by the State agency or FNSRO where applicable,
the State agency or FNSRO where applicable, may require the School Food
Authority to reduce children's prices, improve food quality or take
other actions designed to improve the nonprofit school food service. In
the absence of any such action, adjustments in the rates of
reimbursement under the Program shall be made.
(k)State agencies shall require compliance by School Food
Authorities with applicable provisions of this part.
(l) Data collection related to school food authorities. (1) Each
State agency must collect data related to school food authorities that
have an agreement with the State agency to participate in the program
for each of Federal fiscal years 2006 through 2009, including those
[[Page 117]]
school food authorities that participated only for part of the fiscal
year. Such data shall include:
(i) The name of each school food authority;
(ii) The city in which each participating school food authority was
headquartered and the name of the state;
(iii) The amount of funds provided to the participating
organization, i.e., the amount of federal funds reimbursed to each
participating school food authority; and
(iv) The type of participating organization, e.g., government
agency, educational institution, non-profit organization/secular, non-
profit organization/faith-based, and ``other.''
(2) On or before August 31, 2007, and each subsequent year through
2010, State agencies must report to FNS data as specified in paragraph
(l)(1) of this section for the prior Federal fiscal year. State agencies
must submit this data in a format designated by FNS.
(44 U.S.C. 3506; sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C.
1759a); sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773 and
1757); Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80
Stat 885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C.
1759))
[32 FR 37, Jan. 5, 1967. Redesignated by Amdt. 2, 33 FR 14513, Sept. 27,
1968]
Editorial Note: For Federal Register citations affecting Sec.
220.13, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 220.14 Claims against school food authorities.
(a) State agencies shall disallow any portion of a claim and recover
any payment made to a School Food Authority that was not properly
payable under this part. State agencies will use their own procedures to
disallow claims and recover overpayments already made.
(b) [Reserved]
(c) The State agency may refer to CND through the FNSRO for
determination any action it proposes to take under this section.
(d) The State agency shall maintain all records pertaining to action
taken under this section. Such records shall be retained for a period of
3 years after the end of the fiscal year to which they pertain.
(e) If CND does not concur with the State agency's action in paying
a claim or a reclaim, or in failing to collect an overpayment, CND shall
assert a claim against the State agency for the amount of such claim,
reclaim, or overpayment. In all such cases the State agency shall have
full opportunity to submit to CND evidence or information concerning the
action taken. If, in the determination of CND, the State agency's action
was unwarranted, the State agency shall promptly pay to FNS the amount
of the claim, reclaim, or overpayment.
(f) The amounts recovered by the State agency from Schools may be
utilized, first, to make payments to School Food Authorities for the
purposes of the related program during the fiscal year for which the
funds were initially available, and second to repay any State funds
expended in the reimbursement of claims under the program and not
otherwise repaid. Any amounts recovered which are not so utilized shall
be returned to FNS in accordance with the requirements of this part.
(g) With respect to School Food Authorities of schools in which the
program is administered by FNSRO, when FNSRO disallows a claim or a
portion of a claim, or makes a demand for refund of an alleged
overpayment, it shall notify the School Food Authority of the reasons
for such disallowance or demand and the School Food Authority shall have
full opportunity to submit evidence or to file reclaims for any amounts
disallowed or demanded in the same manner as that afforded in this
section to School Food Authorities of schools in which the program is
administered by State agencies.
(h) In the event that the State agency or FNSRO, where applicable,
finds that a school is failing to meet the requirements of Sec.
220.8(g), Sec. 220.8(i)(2) and (i)(3), whichever is applicable, the
State agency or FNSRO need not disallow payment or collect an
overpayment arising out of such failure, if the State agency or FNSRO
takes such other action as, in its opinion, will have a corrective
effect.
(i) The Secretary shall have the authority to determine the amount
of, to
[[Page 118]]
settle, and to adjust any claim arising under the Program, and to
compromise or deny such claim or any part thereof. The Secretary shall
also have the authority to waive such claims if the Secretary determines
that to do so would serve the purposes of the Program. This provision
shall not diminish the authority of the Attorney General of the United
States under section 516 of Title 28, U.S. Code, to conduct litigation
on behalf of the United States.
(44 U.S.C. 3506; secs. 804, 816 and 817, Pub. L. 97-35, 95 Stat. 521-535
(42 U.S.C. 1753, 1756, 1759, 1771 and 1785))
[32 FR 37, Jan. 5, 1967. Redesignated by Amdt. 2, 33 FR 14513, Sept. 27,
1968, and amended by Amdt. 9, 37 FR 9614, May 13, 1972; 40 FR 30925,
July 24, 1975. Redesignated and amended by Amdt. 25, 41 FR 34757, 34760,
Aug. 17, 1976; 47 FR 746, Jan. 7, 1982; Amdt. 42, 47 FR 14134, Apr. 2,
1982; 60 FR 31222, June 13, 1995; 65 FR 26931, May 9, 2000]
Sec. 220.15 Management evaluations and audits.
(a) Unless otherwise exempt, audits at the State and institution
levels shall be conducted in accordance with Office of Management and
Budget Circular A-133 and the Department's implementing regulations at 7
CFR part 3052. For availability of the OMB Circular mentioned in this
paragraph, please refer to 5 CFR 1310.3.
(b) Each State agency shall provide FNS with full opportunity to
conduct management evaluations (including visits to schools) of all
operations of the State agency under the programs covered by this part
and shall provide OIG with full opportunity to conduct audits (including
visits to schools) of all operations of the State agency under such
programs. Each State agency shall make available its records, including
records of the receipt and expenditure of funds under such programs,
upon a reasonable request by FNS or OIG. OIG shall also have the right
to make audits of the records and operations of any school.
(c) In conducting management evaluations, reviews, or audits in a
fiscal year, the State agency, FNS, or OIG may disregard an overpayment
if the overpayment does not exceed $600. A State agency may establish,
through State law, regulation or procedure, an alternate disregard
threshold that does not exceed $600. This disregard may be made once per
each management evaluation, review, or audit per Program within a fiscal
year. However, no overpayment is to be disregarded where there is
substantial evidence of violations of criminal law or civil fraud
statutes.
(Secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1773);
sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1759a))
[40 FR 30925, July 24, 1975. Redesignated and amended by Amdt. 25, 41 FR
34757, 34760, Aug. 17, 1976; 43 FR 59825, Dec. 22, 1978; Amdt. 41, 47 FR
14135, Apr. 2, 1982; Amdt. 43, 47 FR 18564, Apr. 30, 1982; Amdt. 56, 54
FR 2990, Jan. 23, 1989; 57 FR 38587, Aug. 26, 1992; 59 FR 1894, Jan. 13,
1994; 64 FR 50742, Sept. 20, 1999; 71 FR 30563, May 30, 2006; 71 FR
39517, July 13, 2006]
Sec. 220.16 Procurement standards.
(a) General. State agencies and school food authorities shall comply
with the requirements of this part and parts 3015, 3016 and 3019 of this
title, as applicable, which implement the applicable Office of
Management and Budget Circulars, concerning the procurement of all goods
and services with nonprofit school food service account funds.
(b) Contractual responsibilities. The standards contained in 7 CFR
part 3016 or 7 CFR part 3019, as applicable, do not relieve the State
agency or School Food Authority of any contractual responsibilities
under its contract. The State agency or School Food Authority is the
responsible authority, without recourse to FNS, regarding the settlement
and satisfaction of all contractual and administrative issues arising
out of procurements entered into in connection with the Program. This
includes but is not limited to: source evaluation, protests, disputes,
claims, or other matters of a contractual nature. Matters concerning
violation of law are to be referred to the local, State or Federal
authority that has proper jurisdiction.
(c) Procedures. The State agency may elect to follow either the
State laws, policies and procedures as authorized by Sec. Sec.
3016.36(a) and 3016.37(a) of this title, or the procurement standards
for other governmental grantees and all governmental subgrantees in
accordance with Sec. 3016.36(b) through (i) of this
[[Page 119]]
title. Regardless of the option selected, States must ensure that all
contracts include any clauses required by Federal statutes and executive
orders and that the requirements of Sec. 3016.60(b) and (c) of this
title are followed. The school food authority may use its own
procurement procedures which reflect applicable State and local laws and
regulations, provided that procurements made with nonprofit school food
service account funds adhere to the standards set forth in this part and
Sec. Sec. 3016.36(b) through 3016.36(i), 3016.60 and Sec. Sec. 3019.40
through 3019.48 of this title, as applicable, and the applicable Office
of Management and Budget Circulars. School food authority procedures
must include a written code of standards of conduct meeting the minimum
standards of Sec. 3016.36(b)(3) or Sec. 3019.42 of this title, as
applicable.
(1) Pre-issuance review requirement. The State agency may impose a
pre-issuance review requirement on a school food authority's proposed
procurement. The school food authority must make available, upon request
of the State agency, its procurement documents, including but not
limited to solicitation documents, specifications, evaluation criteria,
procurement procedures, proposed contracts and contract terms. School
food authorities shall comply with State agency requests for changes to
procurement procedures and solicitation and contract documents to ensure
that, to the State agency's satisfaction, such procedures and documents
reflect applicable procurement and contract requirements and the
requirements of this part.
(2) Prototype solicitation documents and contracts. The school food
authority must obtain the State agency's prior written approval for any
change made to prototype solicitation or contract documents before
issuing the revised solicitation documents or execution of the revised
contract.
(3) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a
procurement failing to meet the requirements of this part.
(d) Buy American.--(1) Definition of domestic commodity or product.
In this paragraph (d), the term ``domestic commodity or product''
means--
(i) An agricultural commodity that is produced in the United States;
and
(ii) A food product that is processed in the United States
substantially using agricultural commodities that are produced in the
United States.
(2) Requirement.--(i) In general. Subject to paragraph (d)(2)(ii) of
this section, the Department shall require that a school food authority
purchase, to the maximum extent practicable, domestic commodities or
products.
(ii) Limitations. Paragraph (d)(2)(i) of this section shall apply
only to--
(A) A school food authority located in the contiguous United States;
and
(B) A purchase of domestic commodity or product for the school
breakfast program under this part.
(3) Applicability to Hawaii. Paragraph (d)(2)(i) of this section
shall apply to a school food authority in Hawaii with respect to
domestic commodities or products that are produced in Hawaii in
sufficient quantities to meet the needs of meals provided under the
school breakfast program under this part.
(e) Cost reimbursable contracts--(1) Required provisions. The school
food authority must include the following provisions in all cost
reimbursable contracts, including contracts with cost reimbursable
provisions, and in solicitation documents prepared to obtain offers for
such contracts:
(i) Allowable costs will be paid from the nonprofit school food
service account to the contractor net of all discounts, rebates and
other applicable credits accruing to or received by the contractor or
any assignee under the contract, to the extent those credits are
allocable to the allowable portion of the costs billed to the school
food authority;
(ii)(A) The contractor must separately identify for each cost
submitted for payment to the school food authority the amount of that
cost that is allowable (can be paid from the nonprofit school food
service account) and the amount that is unallowable (cannot be paid from
the nonprofit school food service account), or;
[[Page 120]]
(B) The contractor must exclude all unallowable costs from its
billing documents and certify that only allowable costs are submitted
for payment and records have been established that maintain the
visibility of unallowable costs, including directly associated costs in
a manner suitable for contract cost determination and verification;
(iii) The contractor's determination of its allowable costs must be
made in compliance with the applicable Departmental and Program
regulations and Office of Management and Budget cost circulars;
(iv) The contractor must identify the amount of each discount,
rebate and other applicable credit on bills and invoices presented to
the school food authority for payment and identify the amount as a
discount, rebate, or in the case of other applicable credits, the nature
of the credit. If approved by the State agency, the school food
authority may permit the contractor to report this information on a less
frequent basis than monthly, but no less frequently than annually;
(v) The contractor must identify the method by which it will report
discounts, rebates and other applicable credits allocable to the
contract that are not reported prior to conclusion of the contract; and
(vi) The contractor must maintain documentation of costs and
discounts, rebates, and other applicable credits, and must furnish such
documentation upon request to the school food authority, the State
agency, or the Department.
(2) Prohibited expenditures. No expenditure may be made from the
nonprofit school food service account for any cost resulting from a cost
reimbursable contract that fails to include the requirements of this
section, nor may any expenditure be made from the nonprofit school food
service account that permits or results in the contractor receiving
payments in excess of the contractor's actual, net allowable costs.
(Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80 Stat.
885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C. 1759))
[Amdt. 45, 48 FR 19355, Apr. 29, 1983, as amended at 64 FR 50743, Sept.
20, 1999; 71 FR 39517, July 13, 2006; 72 FR 61494, Oct. 31, 2007]
Sec. 220.17 Prohibitions.
(a) In carrying out the provisions of this part, the Department
shall not impose any requirements with respect to teaching personnel,
curriculum, instructions, methods of instruction, and materials of
instruction in any school as a condition for participation in the
Program.
(b) The value of assistance to children under the Act shall not be
considered to be income or resources for any purposes under any Federal
or State laws, including, but not limited to, laws relating to taxation,
welfare, and public assistance programs. Expenditure of funds from State
and local sources for the maintenance of food programs for children
shall not be diminished as a result of funds received under the Act.
[32 FR 37, Jan. 5, 1967. Redesignated by Amdt. 2, 33 FR 14513, Sept. 27,
1968. Redesignated and amended by Amdt. 25, 41 FR 34757, 34760, Aug. 17,
1976; 64 FR 50743, Sept. 20, 1999]
Sec. 220.18 Withholding payments.
In accordance with Departmental regulations at Sec. 3016.43 and
Sec. 3019.62 of this title, the State agency shall withhold Program
payments, in whole or in part, to any school food authority which has
failed to comply with the provisions of this part. Program payments
shall be withheld until the school food authority takes corrective
action satisfactory to the State agency, or gives evidence that such
corrective actions will be taken, or until the State agency terminates
the grant in accordance with Sec. 220.19. Subsequent to the State
agency's acceptance of the corrective actions, payments will be released
for any breakfasts served in accordance with the provisions of this part
during the period the payments were withheld.
[72 FR 61495, Oct. 31, 2007]
Sec. 220.19 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed
to comply with the provisions of this part, or with FNS guidelines and
instructions, FNS may suspend or terminate the Program in whole, or in
part, or take any other action as may be
[[Page 121]]
available and appropriate. A State agency may also terminate the Program
by mutual agreement with FNS. FNS and the State agency shall comply with
the provisions of 7 CFR part 3016 concerning grant suspension,
termination and closeout procedures. Furthermore, the State agency or
FNSRO were applicable, shall apply these provisions, or the parallel
provisions of 7 CFR part 3019, as applicable, to suspension or
termination of the Program in School Food Authorities.
[Amdt. 49, 49 FR 18988, May 4, 1984, as amended at 71 FR 39517, July 13,
2006. Redesignated at 72 FR 61495, Oct. 31, 2007]
Sec. 220.20 Free and reduced price breakfasts.
The determination of the children to whom free and reduced price
breakfasts are to be served because of inability to pay the full price
thereof, and the serving of the breakfasts to such children, shall be
effected in accordance with part 245 of this chapter.
[Amdt. 25, 41 FR 34760, Aug. 17, 1976. Redesignated at 72 FR 61495, Oct.
31, 2007]
Sec. 220.21 Program information.
School Food Authorities desiring information concerning the program
should write to their State educational agency or to the appropriate
Food and Nutrition Service Regional Office as indicated below:
(a) In the States of Delaware, District of Columbia, Maryland, New
Jersey, Pennsylvania, Puerto Rico, Virginia, Virgin Islands, and West
Virginia: Mid-Atlantic Regional Office, FNS, U.S. Department of
Agriculture, 300 Corporate Boulevard, Robbinsville, New Jersey 08691-
1598.
(b) In the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee: Southeast
Regional Office, FNS, U.S. Department of Agriculture, 161 Forsyth Street
SW., Room 8T36, Atlanta, Georgia 30303.
(c) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio,
and Wisconsin: Midwest Regional Office, FNS, U.S. Department of
Agriculture, 77 West Jackson Boulevard, 20th Floor, Chicago, Illinois
60604-3507.
(d) In the States of Arkansas, Louisiana, New Mexico, Oklahoma, and
Texas: Southwest Regional Office, FNS, U.S. Department of Agriculture,
1100 Commerce Street, Room 5-C-30, Dallas, Texas 75242.
(e) In the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon, the Commonwealth of the Northern
Mariana Islands, and Washington: Western Regional Office, FNS, U.S.
Department of Agriculture, 550 Kearny Street, Room 400, San Francisco,
California 94108.
(f) In the States of Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, and Vermont: Northeast Regional
Office, FNS, U.S. Department of Agriculture, 10 Causeway Street, Room
501, Boston, Massachusetts 02222-1065.
(g) In the States of Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Utah, and Wyoming: Mountain Plains
Regional Office, FNS, U.S. Department of Agriculture, 1244 Speer
Boulevard, Suite 903, Denver, Colorado 80204.
(Sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760); sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626; secs. 804, 816, 817 and 819, Pub. L. 97-
35, 95 Stat. 521-535 (42 U.S.C. 1753, 1756, 1759, 1771, 1773, and 1785))
[32 FR 37, Jan. 5, 1967. Redesignated at 49 FR 18988, May 4, 1984. And
further redesignated at 72 FR 61495, Oct. 31, 2007]
Editorial Note: For Federal Register citations affecting Sec.
220.20, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 220.22 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control
number
------------------------------------------------------------------------
220.3(e)................................................... 0584-0327
220.5...................................................... 0584-0012
220.7(a)-(e)............................................... 0584-0329
0584-0012
0584-0026
220.8(f)................................................... 0584-0012
220.9(a)................................................... 0584-0012
220.11 (a), (b), (e)....................................... 0584-0012
0584-0002
0584-0341
220.12(b).................................................. 0584-0012
220.13 (a-1)-(c), (f)...................................... 0584-0026
0584-0002
0584-0341
0584-0012
220.14(d).................................................. 0584-0012
[[Page 122]]
220.15..................................................... 0584-0012
------------------------------------------------------------------------
[Amdt. 56, 54 FR 2990, Jan. 23, 1989. Redesignated at 72 FR 61495, Oct.
31, 2007]
Sec. Appendix A to Part 220--Alternate Foods for Meals
I. Formulated Grain-Fruit Products
1. Schools may utilize the formulated grain-fruit products defined
in paragraph 3 as a food component in meeting the meal requirements of
this part under the following terms and conditions:
(a) Formulated grain-fruit products may be used to meet one bread/
bread alternate and the fruit/vegetable requirement in the breakfast
pattern specified in Sec. 220.8.
(b) Only individually wrapped formulated grain-fruit products which
bear a label conforming to the following legend shall be utilized.
``This product conforms to U.S.D.A. Child Nutrition Program
specifications. For breakfast, it meets the requirements for fruit/
vegetable/juice and one bread/bread alternate.''
2. Only formulated grain-fruit products that have been accepted by
the Food and Nutrition Service (FNS) for use in the USDA child nutrition
programs may be labeled as provided in paragraph 1.(b) of this appendix.
Manufacturers seeking acceptance of their product shall furnish FNS a
chemical analysis, protein efficiency ratio analysis, and such other
pertinent data as may be requested by FNS. This information shall be
forwarded to: Director, Nutrition and Technical Services Staff, Food and
Nutrition Service, U.S. Department of Agriculture, Alexandria, Virginia
22302. All laboratory analyses are to be performed by independent or
other laboratories acceptable to FNS. (FNS prefers an independent
laboratory.) All laboratories shall retain the ``raw'' laboratory data
for a period of one year. Such information shall be made available to
FNS upon request.
3. To be accepted by FNS, products must have the following
characteristics and meet the following nutritional specifications:
(a) Types. There are two types of products: one is a grain-type
product and the other a grain-fruit type product.
(b) Ingredients. A grain-type product shall have grain as its
primary ingredient. A grain-fruit type product shall have fruit as its
primary ingredient. Both types of products must have at least 25 percent
of their weight derived from grain. All ingredients and/or components
shall comply with pertinent requirements or standards of the USDA and
the Food, Drug, and Cosmetic Act, as amended, and any regulations issued
thereunder.
(c) Nutritional specifications. Each serving of the product shall
meet the minimum compositional requirements in the following table. The
requirements as specified for those nutrients not limited by maximum
values will be deemed to have been met if reasonable overages of the
vitamins and minerals, within the limits of good manufacturing practice,
are present to insure that the required levels are maintained throughout
the expected shelf life under customary conditions of distribution and
storage. An exception will be made for vitamins or minerals which occur
naturally in an ingredient at such concentration that the level
specified will be substantially exceeded in the final product. Such
excess will be permitted but no lable claim of nutritional advantage can
be made for overages for any nutrients. Analytical methods employed
should be according to the standard procedures defined in the
Association of Official Analytical Chemists, 1970, ``Official Methods of
Analysis,'' 11th edition, Washington, DC or by appropriate analytical
procedures FNS considers reliable.
Nutritional Levels of Grain-Fruit Products \1\
------------------------------------------------------------------------
Nutrient Unit Minimum Maximum
------------------------------------------------------------------------
Weight.......................... Ounce............... 2 4.0
PER............................. Casein=2.5.......... 2.0
Moisture........................ Percent weight...... ....... 40.0
Fat \2\......................... ......do............ ....... 22.0
Fiber........................... ......do............ ....... 0.8
Protein (Nx6.25)................ Gram................ 5.0
Energy.......................... Kilocalorie......... 250
Vitamin A \3\................... International unit.. 1,115 1,675.0
Vitamin E....................... ......do............ 5
Vitamin B12..................... Microgram........... 1.25
Thiamin......................... Milligram........... .26
Riboflavin...................... ......do............ .13
Vitamin B6...................... ......do............ .26
Vitamin C....................... ......do............ 20
Niacin.......................... ......do............ 2.65
Folacin......................... ......do............ .04
Iron \4\........................ ......do............ 4.4
Calcium......................... ......do............ 120
Phosphorus...................... ......do............ 120
Magnesium....................... ......do............ 30
------------------------------------------------------------------------
\1\ These specifications are based on a nutrient level for acceptable
products plus \1/2\ pint of fluid milk (as defined in Sec. 220.2 of
the regulations (7 CFR part 220)) to provide at least 25 percent of
the Recommended Dietary Allowances (RDA), 1968, for 10- to 12-year-old
boys and girls for specified nutrients except magnesium and
kilocalories. Magnesium and kilocalories--at least 13 percent of this
RDA.
\2\ Although the maximum fat in these specifications is 22 percent,
consideration should be given to the development of formulated items
containing less fat. Most medical authorities recommend keeping the
dietary intake of fats at about \1/3\ of the day's calories. At least
5 percent of the total calories shall be from linoleic acid.
\3\ Vitamin A levels above the maximum of 1,675 I.U. will be allowed in
products containing this nutrient as a natural food, and if the
vitamin has not been added to the ingredients or foods.
[[Page 123]]
\4\ Recommended sources of iron are ferric ammonium citrate, ferrous
fumarate, ferrous sulfates (FeSO4 or FeSO4 7H2 O), ferrous gluconate,
reduced iron, or other sources known to have a similar relative
biological value.
II. Alternate Protein Products
A. What Are the Criteria for Alternate Protein Products Used in the
School Breakfast Program?
1. An alternate protein product used in meals planned under the
food-based menu planning approaches in Sec. 220.8(g), must meet all of
the criteria in this section.
2. An alternate protein product whether used alone or in combination
with meat or other meat alternates must meet the following criteria:
a. The alternate protein product must be processed so that some
portion of the non-protein constituents of the food is removed. These
alternate protein products must be safe and suitable edible products
produced from plant or animal sources.
b. The biological quality of the protein in the alternate protein
product must be at least 80 percent that of casein, determined by
performing a Protein Digestibility Corrected Amino Acid Score (PDCAAS).
c. The alternate protein product must contain at least 18 percent
protein by weight when fully hydrated or formulated. (``When hydrated or
formulated'' refers to a dry alternate protein product and the amount of
water, fat, oil, colors, flavors or any other substances which have been
added).
d. Manufacturers supplying an alternate protein product to
participating schools or institutions must provide documentation that
the product meets the criteria in paragraphs A.2. a through c of this
appendix.
e. Manufacturers should provide information on the percent protein
contained in the dry alternate protein product and on an as prepared
basis.
f. For an alternate protein product mix, manufacturers should
provide information on:
(1) The amount by weight of dry alternate protein product in the
package;
(2) Hydration instructions; and
(3) instructions on how to combine the mix with meat or other meat
alternates.
B. How Are Alternate Protein Products Used in the School Breakfast
Program?
1. Schools, institutions, and service institutions may use alternate
protein products to fulfill all or part of the meat/meat alternate
component discussed in Sec. 220.8. The following terms and conditions
apply:
a. The alternate protein product may be used alone or in combination
with other food ingredients. Examples of combination items are beef
patties, beef crumbles, pizza topping, meat loaf, meat sauce, taco
filling, burritos, and tuna salad.
b. Alternate protein products may be used in the dry form
(nonhydrated), partially hydrated or fully hydrated form. The moisture
content of the fully hydrated alternate protein product (if prepared
from a dry concentrated form) must be such that the mixture will have a
minimum of 18 percent protein by weight or equivalent amount for the dry
or partially hydrated form (based on the level that would be provided if
the product were fully hydrated).
C. How Are Commercially Prepared Products Used in the School Breakfast
Program?
Schools, institutions, and service institutions may use a
commercially prepared meat or other meat alternate products combined
with alternate protein products or use a commercially prepared product
that contains only alternate protein products.
(Secs. 804, 816, 817, and 819, Pub. L. 97-35, 95 Stat. 521-535 (42
U.S.C. 1753, 1756, 1759, 1771, 1773 and 1785))
[Amdt. 18, 39 FR 11249, Mar. 27, 1974, as amended at 40 FR 37027, Aug.
25, 1975; Amdt. 45, 48 FR 195, Jan. 4, 1983; Amdt. 57, 54 FR 13048, Mar.
30, 1989; 60 FR 31222, June 13, 1995; 65 FR 12436, Mar. 9, 2000; 65 FR
26923, May 9, 2000. Redesignated at 72 FR 61495, Oct. 31, 2007]
Sec. Appendix B to Part 220--Categories of Foods of Minimal Nutritional
Value
(1) Soda Water--A class of beverages made by absorbing carbon
dioxide in potable water. The amount of carbon dioxide used is not less
than that which will be absorbed by the beverage at a pressure of one
atmosphere and at a temperature of 60[deg] F. It either contains no
alcohol or only such alcohol, not in excess of 0.5 percent by weight of
the finished beverage, as is contributed by the flavoring ingredient
used. No product shall be excluded from this definition because it
contains artificial sweeteners or discrete nutrients added to the food
such as vitamins, minerals and protein.
(2) Water ices. As defined by 21 CFR 135.160 Food and Drug
Administration Regulations except that water ices which contain fruit or
fruit juices are not included in this definition.
(3) Chewing gum. Flavored products from natural or synthetic gums
and other ingredients which form an insoluble mass for chewing.
(4) Certain candies. Processed foods made predominantly from
sweeteners or artificial sweeteners with a variety of minor ingredients
which characterize the following types: (a) Hard candy. A product made
predominantly from sugar (sucrose) and corn syrup
[[Page 124]]
which may be flavored and colored, is characterized by a hard, brittle
texture, and includes such items as sour balls, fruit balls, candy
sticks, lollipops, starlight mints, after dinner mints, sugar wafers,
rock candy, cinnamon candies, breath mints, jaw breakers and cough
drops.
(b) Jellies and gums. A mixture of carbohydrates which are combined
to form a stable gelatinous system of jelly-like character, and are
generally flavored and colored, and include gum drops, jelly beans,
jellied and fruit-flavored slices.
(c) Marshmallow candies. An aerated confection composed of sugar,
corn syrup, invert sugar, 20% water and gelatin or egg white to which
flavors and colors may be added.
(d) Fondant. A product consisting of microscopic-sized sugar
crystals which are separated by a thin film of sugar and/or invert sugar
in solution such as candy corn, soft mints.
(e) Licorice. A product made predominantly from sugar and corn syrup
which is flavored with an extract made from the licorice root.
(f) Spun candy. A product that is made from sugar that has been
boiled at high temperature and spun at a high speed in a special
machine.
(g) Candy coated popcorn. Popcorn which is coated with a mixture
made predominantly from sugar and corn syrup.
Schedule for Amending Appendix B
------------------------------------------------------------------------
Publication
Actions for publication ---------------------------------------
May November
------------------------------------------------------------------------
Deadline for receipt of Nov. 15........... May 15.
petitions by USDA.
USDA to notify petitioners of Feb. 1............ Aug. 1.
results of Departmental review
and publish proposed rule (if
applicable).
60 Day Comment Period........... Feb 1 through Apr. Aug. 1 through
1. Oct. 1.
Public Notice of Amendment of May 1............. Nov. 1.
Appendix B by.
------------------------------------------------------------------------
Written petitions should be sent to the Chief, Technical Assistance
Branch, Nutrition and Technical Services Divisions, FNS, USDA,
Alexandria, Virginia 22302 on or before November 15 or May 15 of each
year. Petitions must include all information specified in Sec.
210.15b(b) (1) or (2), and Sec. 220.12(b) (1) or (2) as appropriate.
(Sec. 17, Pub. L. 95-166, 91 Stat. 1345 (42 U.S.C. 1779); secs. 804,
816, 817 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753, 1756,
1759, 1771, 1773 and 1785))
[Amdt. 32, 45 FR 6772, Jan. 29, 1980, as amended at 45 FR 72081, Oct.
31, 1980; 45 FR 76937, Nov. 21, 1980; Amdt. 45, 48 FR 195, Jan. 4, 1983;
54 FR 18466, May 1, 1989]
Sec. Appendix C to Part 220--Child Nutrition (CN) Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service (FNS) in conjunction with the Food Safety and Inspection Service
(FSIS), and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture (USDA), and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/meat alternate component of meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable,
225.21, and 226.20 and are served in the main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full-strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) ``CN label'' is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3 (b) and (c) below.
(b) The ``CN logo'' (as shown below) is a distinct border which is
used around the edges of a ``CN label statement'' as defined in
paragraph 3(c).
[[Page 125]]
[GRAPHIC] [TIFF OMITTED] TC17SE91.003
(c) The ``CN label statement'' includes the following:
(1) The product identification number (assigned by FNS),
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable, 220.8,
225.21, and 226.20. The statement shall identify the contribution of a
specific portion of a meat/meat alternate product toward the meat/meat
alternate, bread/bread alternate, and/or vegetable/fruit component of
the meal pattern requirements. For juice drinks and juice drink products
the statement shall identify their contribution toward the vegetable/
fruit component of the meal pattern requirements,
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[GRAPHIC] [TIFF OMITTED] TC17SE91.004
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by the Food and Nutrition Service and appropriate USDA or USDC Federal
agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate, and the manufacturer's or
distributor's name and address.
(1) The inspection marking for CN labeled non-meat, non-poultry, and
non-seafood products with the exception of juice drinks and juice drink
products is established as follows:
[GRAPHIC] [TIFF OMITTED] TC17SE91.005
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program Aid Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the child nutrition programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
[[Page 126]]
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable, 220.8,
225.21, and 226.20. If a State or Federal auditor finds that a product
that is CN labeled does not actually meet the meal pattern requirements
claimed on the label, the auditor will report this finding to FNS. FNS
will prepare a report of the findings and send it to the appropriate
divisions of FSIS and AMS of the USDA, National Marine Fisheries
Services of the USDC, Food and Drug Administration, or the Department of
Justice for action against the company.
Any or all of the following courses of action may be taken:
(a) The company's CN label may be revoked for a specific period of
time;
(b) The appropriate agency may pursue a misbranding or mislabeling
action against the company producing the product;
(c) The company's name will be circulated to regional FNS offices;
(d) FNS will require the food service program involved to notify the
State agency of the labeling violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program.
To apply for a CN label and to obtain additional information on CN
label application procedures write to: CN Labels, U.S. Department of
Agriculture, Food and Nutrition Service, Nutrition and Technical
Services Division, 3101 Park Center Drive, Alexandria, Virginia 22302.
(National School Lunch Act, secs. 9, 13, 17; 42 U.S.C. 1758, 1761, 1766;
7 CFR 210.10, 220.8, 225.21, 226.20)
[49 FR 18457, May 1, 1984; 49 FR 45109, Nov. 15, 1984; 60 FR 31222, June
13, 1995; 65 FR 26923, May 9, 2000]
PART 225_SUMMER FOOD SERVICE PROGRAM--Table of Contents
Subpart A_General
Sec.
225.1 General purpose and scope.
225.2 Definitions.
225.3 Administration.
Subpart B_State Agency Provisions
225.4 Program management and administration plan.
225.5 Payments to State agencies and use of Program funds.
225.6 State agency responsibilities.
225.7 Program monitoring and assistance.
225.8 Records and reports.
225.9 Program assistance to sponsors.
225.10 Audits and management evaluations.
225.11 Corrective action procedures.
225.12 Claims against sponsors.
225.13 Appeal procedures.
Subpart C_Sponsor and Site Provisions
225.14 Requirements for sponsor participation.
225.15 Management responsibilities of sponsors.
225.16 Meal service requirements.
Subpart D_General Administrative Provisions
225.17 Procurement standards.
225.18 Miscellaneous administrative provisions.
225.19 Regional office addresses.
225.20 Information collection/recordkeeping--OMB assigned control
numbers.
Appendix A to Part 225--Alternate Foods for Meals
Appendix B to Part 225 [Reserved]
Appendix C to Part 225--Child Nutrition (CN) Labeling Program
Authority: Secs. 9, 13 and 14, Richard B. Russell National School
Lunch Act, as amended (42 U.S.C. 1758, 1761 and 1762a).
Source: 54 FR 18208, Apr. 27, 1989, unless otherwise noted.
Subpart A_General
Sec. 225.1 General purpose and scope.
This part establishes the regulations under which the Secretary will
administer a Summer Food Service Program. Section 13 of the Act
authorizes the Secretary to assist States through grants-in-aid to
conduct nonprofit food service programs for children during the summer
months and at other approved times. The primary purpose of the Program
is to provide food service to children from needy areas during periods
when area schools are closed for vacation.
Sec. 225.2 Definitions.
Act means the National School Lunch Act, as amended.
Administrative costs means costs incurred by a sponsor related to
planning, organizing, and managing a food service under the Program, and
excluding interest costs and operating costs.
Adult means, for the purposes of the collection of social security
numbers as a condition of eligibility for Program meals, any individual
21 years of age or older.
[[Page 127]]
Advance payments means financial assistance made available to a
sponsor for its operating costs and/or administrative costs prior to the
end of the month in which such costs will be incurred.
Areas in which poor economic conditions exist means:
(a) The local areas from which an open site and restricted open site
draw their attendance in which at least 50 percent of the children are
eligible for free or reduced-price school meals under the National
School Lunch Program and the School Breakfast Program, as determined:
(1) By information provided from departments of welfare and
education, zoning commissions, census tracts, and organizations
determined by the State agency to be migrant organizations;
(2) By the number of free and reduced-price lunches or breakfasts
served to children attending public and nonprofit private schools
located in the areas of Program sites; or
(3) From other appropriate sources; or
(b) A closed enrolled site.
Camps means residential summer camps and nonresidential day camps
which offer a regularly scheduled food service as part of an organized
program for enrolled children. Nonresidential camp sites shall offer a
continuous schedule of organized cultural or recreational programs for
enrolled children between meal services.
Children means (a) persons 18 years of age and under, and (b)
persons over 18 years of age who are determined by a State educational
agency or a local public educational agency of a State to be mentally or
physically handicapped and who participate in a public or nonprofit
private school program established for the mentally or physically
handicapped.
Closed enrolled site means a site which is open only to enrolled
children, as opposed to the community at large, and in which at least 50
percent of the enrolled children at the site are eligible for free or
reduced price school meals under the National School Lunch Program and
the School Breakfast Program, as determined by approval of applications
in accordance with Sec. 225.15(f).
Continuous school calendar means a situation in which all or part of
the student body of a school is (a) on a vacation for periods of 15
continuous school days or more during the period October through April
and (b) in attendance at regularly scheduled classes during most of the
period May through September.
Costs of obtaining food means costs related to obtaining food for
consumption by children. Such costs may include, in addition to the
purchase price of agricultural commodities and other food, the cost of
processing, distributing, transporting, storing, or handling any food
purchased for, or donated to, the Program.
Current income means income, as defined in Sec. 225.15(f)(4)(vi),
received during the month prior to application for free meals. If such
income does not accurately reflect the household's annual income, income
must be based on the projected annual household income. If the prior
year's income provides an accurate reflection of the household's current
annual income, the prior year may be used as a base for the projected
annual income.
Department means the U.S. Department of Agriculture.
Disclosure means reveal or use individual children's program
eligibility information obtained through the free and reduced price meal
eligibility process for a purpose other than for the purpose for which
the information was obtained. The term refers to access, release, or
transfer of personal data about children by means of print, tape,
microfilm, microfiche, electronic communication or any other means.
Documentation means:
(a) The completion of the following information on a free meal
application:
(1) Names of all household members;
(2) Income received by each household member, identified by source
of income (such as earnings, wages, welfare, pensions, support payments,
unemployment compensation, social security and other cash income);
(3) The signature of an adult household member; and
(4) The social security number of the adult household member who
signs the application, or an indication that he/
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she does not possess a social security number; or
(b) For a child who is a member of a household receiving food stamp,
FDPIR, or TANF benefits, ``documentation'' means completion of only the
following information on a free meal application:
(1) The name(s) and appropriate food stamp, FDPIR, or TANF case
number(s) for the child(ren); and
(2) the signature of an adult member of the household.
Experienced site means a site which, as determined by the State
agency, has successfully participated in the Program in the prior year.
Experienced sponsor means a sponsor which, as determined by the
State agency, has successfully participated in the Program in the prior
year.
Family means a group of related or nonrelated individuals who are
not residents of an institution or boarding house but who are living as
one economic unit.
FDPIR household means any individual or group of individuals which
is currently certified to receive assistance as a household under the
Food Distribution Program on Indian Reservations.
Fiscal year means the period beginning October 1 of any calendar
year and ending September 30 of the following calendar year.
FNS means the Food and Nutrition Service of the Department.
FNSRO means the appropriate FNS Regional Office.
Food service management company means any commercial enterprise or
nonprofit organization with which a sponsor may contract for preparing
unitized meals, with or without milk, for use in the Program, or for
managing a sponsor's food service operations in accordance with the
limitations set forth in Sec. 225.15. Food service management companies
may be: (a) Public agencies or entities; (b) private, nonprofit
organizations; or (c) private, for-profit companies.
Food stamp household means any individual or group of individuals
which is currently certified to receive assistance as a household under
the Food Stamp Program.
Household means ``family,'' as defined in this section.
Income accruing to the program means all funds used by a sponsor in
its food service program, including but not limited to all monies, other
than program payments, received from Federal, State and local
governments, from food sales to adults, and from any other source
including cash donations or grants. Income accruing to the Program will
be deducted from combined operating and administrative costs.
Income standards means the family-size and income standards
prescribed annually by the Secretary for determining eligibility for
reduced price meals under the National School Lunch Program and the
School Breakfast Program.
Meals means food which is served to children at a food service site
and which meets the nutritional requirements set out in this part.
Medicaid means the State medical assistance program under title XIX
of the Social Security Act (42 U.S.C. 1396 et seq.).
Milk means whole milk, lowfat milk, skim milk, and buttermilk. All
milk must be fluid and pasteurized and must meet State and local
standards for the appropriate type of milk. Milk served may be flavored
or unflavored. In Alaska, Hawaii, American Samoa, Guam, Puerto Rico, the
Trust Territory of the Pacific Islands, the Northern Mariana Islands,
and the Virgin Islands of the United States, if a sufficient supply of
such types of fluid milk cannot be obtained, reconstituted or recombined
milk may be used. All milk should contain Vitamins A and D at the levels
specified by the Food and Drug Administration and at levels consistent
with State and local standards for such milk.
Needy children means children from families whose incomes are equal
to or below the Secretary's Guidelines for Determining Eligibility for
Reduced Price School Meals.
New site means a site which did not participate in the Program in
the prior year, or, as determined by the State agency, a site which has
experienced significant staff turnover from the prior year.
[[Page 129]]
New sponsor means a sponsor which did not participate in the Program
in the prior year, or, as determined by the State agency, a sponsor
which has experienced significant staff turnover from the prior year.
NYSP means the National Youth Sports Program administered by the
National Collegiate Athletic Association.
NYSP feeding site means a site at which all of the children
receiving Program meals are enrolled in the NYSP and which qualifies for
Program participation on the basis of documentation that the site meets
the definition of ``areas in which poor economic conditions exist'' as
provided in this section.
OIG means the Office of the Inspector General of the Department.
Open site means a site at which meals are made available to all
children in the area and which is located in an area in which at least
50 percent of the children are from households that would be eligible
for free or reduced price school meals under the National School Lunch
Program and the School Breakfast Program, as determined in accordance
with paragraph (a) of the definition of Areas in which poor economic
conditions exist.
Operating costs means the cost of operating a food service under the
Program,
(a) Including the (1) cost of obtaining food, (2) labor directly
involved in the preparation and service of food, (3) cost of nonfood
supplies, (4) rental and use allowances for equipment and space, and (5)
cost of transporting children in rural areas to feeding sites in rural
areas, but
(b) Excluding (1) the cost of the purchase of land, acquisition or
construction of buildings, (2) alteration of existing buildings, (3)
interest costs, (4) the value of in-kind donations, and (5)
administrative costs.
Private nonprofit means tax exempt under the Internal Revenue Code
of 1986, as amended.
Private nonprofit organization means an organization (other than
private nonprofit residential camps, school food authorities, or
colleges or universities participating in the NYSP) which meets the
definition of ``private nonprofit'' in this section and which:
(a) Administers the Program:
(1) At no more than 25 sites, with not more than 300 children being
served at any approved meal service at any one site; or
(2) With a waiver granted by the State in accordance with Sec.
225.6(b)(ii), not more than 500 children being served at any approved
meal service at any one site;
(b) Operates in areas where a school food authority has not
indicated that it will operate the Program in the current year;
(c) Exercises full control and authority over the operation of the
Program at all sites under its sponsorship;
(d) Provides ongoing year-round activities for children or families;
(e) Demonstrates that it possesses adequate management and the
fiscal capacity to operate the Program; and
(f) Meets applicable State and local health, safety, and sanitation
standards.
Program means the Summer Food Service Program for Children
authorized by Section 13 of the Act.
Program funds means Federal financial assistance made available to
State agencies for the purpose of making Program payments.
Program payments means financial assistance in the form of start-up
payments, advance payments, or reimbursement paid to sponsors for
operating and administrative costs.
Restricted open site means a site which is initially open to broad
community participation, but at which the sponsor restricts or limits
attendance for reasons of security, safety or control. Site eligibility
for a restricted open site shall be documented in accordance with
paragraph (a) of the definition of Areas in which poor economic
conditions exist.
Rural means (a) any area in a county which is not a part of a
Metropolitan Statistical Area or (b) any ``pocket'' within a
Metropolitan Statistical Area which, at the option of the State agency
and with FNSRO concurrence, is determined to be geographically isolated
from urban areas.
School food authority means the governing body which is responsible
for
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the administration of one or more schools and which has the legal
authority to operate a lunch program in those schools. In addition, for
the purpose of determining the applicability of food service management
company registration and bid procedure requirements, ``school food
authority'' also means any college or university which participates in
the Program.
Secretary means the Secretary of Agriculture.
Self-preparation sponsor means a sponsor which prepares the meals
that will be served at its site(s) and does not contract with a food
service management company for unitized meals, with or without milk, or
for management services.
Session means a specified period of time during which an enrolled
group of children attend camp.
Site means a physical location at which a sponsor provides a food
service for children and at which children consume meals in a supervised
setting.
Special account means an account which a State agency may require a
vended sponsor to establish with the State agency or with a Federally
insured bank. Operating costs payable to the sponsor by the State agency
are deposited in the account and disbursement of monies from the account
must be authorized by both the sponsor and the food service management
company.
Sponsor means a public or private nonprofit school food authority, a
public or private nonprofit residential summer camp, a unit of local,
municipal, county or State government, a public or private nonprofit
college or university currently participating in the NYSP, or a private
nonprofit organization which develops a special summer or other school
vacation program providing food service similar to that made available
to children during the school year under the National School Lunch and
School Breakfast Programs and which is approved to participate in the
Program. Sponsors are referred to in the Act as ``service
institutions''.
Start-up payments means financial assistance made available to a
sponsor for administrative costs to enable it to effectively plan a
summer food service, and to establish effective management procedures
for such a service. These payments shall be deducted from subsequent
administrative cost payments.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands of the United States,
Guam, American Samoa, the Trust Territory of the Pacific Islands, and
the Northern Mariana Islands.
State agency means the State educational agency or an alternate
agency that has been designated by the Governor or other appropriate
executive or legislative authority of the State and which has been
approved by the Department to administer the Program within the State,
or, in States where FNS administers the Program, FNSRO.
State Children's Health Insurance Program (SCHIP) means the State
medical assistance program under title XXI of the Social Security Act
(42 U.S.C. 1397aa et seq.).
TANF means the State funded program under part A of title IV of the
Social Security Act that the Secretary determines complies with
standards established by the Secretary that ensure that the standards
under the State program are comparable to or more restrictive than those
in effect on June 1, 1995. This program is commonly referred to as
Temporary Assistance for Needy Families, although States may refer to
the program by another name.
Unit of local, municipal, county or State government means an entity
which is so recognized by the State constitution or State laws, such as
the State administrative procedures act, tax laws, or other applicable
State laws which delineate authority for government responsibility in
the State.
Vended sponsor means a sponsor which purchases from a food service
management company the unitized meals, with or without milk, which it
will serve at its site(s), or a sponsor which purchases management
services, subject to the limitations set forth in Sec. 225.15, from a
food service management company.
Yogurt means commercially prepared coagulated milk products obtained
by the fermentation of specific bacteria, that meet milk fat or milk
solid requirements and to which flavoring foods or ingredients may be
added. These products are covered by the Food
[[Page 131]]
and Drug Administration's Standard of Identity for yogurt, lowfat
yogurt, and nonfat yogurt, (21 CFR 131.200), (21 CFR 131.203), (21 CFR
131.206), respectively.
7 CFR part 3015 means the Uniform Federal Assistance Regulations
published by the Department to implement certain policies applicable to
all Department programs. The applicable provisions deal with competition
for discretionary grants and cooperative agreements, costs requiring
prior approval, acknowledgement of Department support in publications
and audiovisuals produced under Department programs, intergovernmental
review of Department programs under Executive Order 12372, and certain
miscellaneous Department requirements.
7 CFR part 3016 means the Department's Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments. 7 CFR part 3016 covers requirements for awards and
subawards to State and local governmental organizations under Department
programs.
7 CFR part 3019 means the Department's Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Non-Profit Organizations. 7 CFR part
3019 covers requirements for awards and subawards to nongovernmental,
nonprofit organizations under Department programs.
7 CFR part 3052 means the Department's regulations implementing OMB
Circular A-133. (To obtain the OMB circular referenced in this
definition, see 5 CFR 1310.3.)
[54 FR 18208, Apr. 27, 1989, as amended at 54 FR 27153, June 28, 1989;
55 FR 13466, Apr. 10, 1990; 61 FR 25553, May 22, 1996; 64 FR 72483, Dec.
28, 1999; 64 FR 72895, Dec. 29, 1999; 66 FR 2202, Jan. 11, 2001; 71 FR
39518, July 13, 2006; 72 FR 10895, Mar. 12, 2007]
Sec. 225.3 Administration.
(a) Responsibility within the Department. FNS shall act on behalf of
the Department in the administration of the Program.
(b) State administered programs. Within the State, responsibility
for the administration of the Program shall be in the State agency. Each
State agency must notify the Department by November 1 of the fiscal year
regarding its intention to administer the Program. Each State agency
desiring to take part in the Program shall enter into a written
agreement with FNS for the administration of the Program in accordance
with the provisions of this part. The agreement shall cover the
operation of the Program during the period specified therein and may be
extended by written consent of both parties. The agreement shall contain
an assurance that the State agency will comply with the Department's
nondiscrimination regulations (7 CFR part 15) issued under title VI of
the Civil Rights Act of 1964, and any Instructions issued by FNS
pursuant to those regulations, title IX of the Education Amendments of
1972, and section 504 of the Rehabilitation Act of 1973. However, if a
State educational agency is not permitted by law to disburse funds to
any of the nonpublic schools in the State, the Secretary shall disburse
the funds directly to such schools within the State for the same
purposes and subject to the same conditions as the disbursements to
public schools within the State by the State educational agency.
(c) Regional office administered programs. The Secretary shall not
administer the Program in the States, except that if a FNSRO has
continuously administered the Program in any State since October 1,
1980, FNS shall continue to administer the Program in that State. In
States in which FNSRO administers the Program, it shall have all of the
responsibilities of a State agency and shall earn State administrative
and Program funds as set forth in this part. A State in which FNS
administers the Program may, upon request to FNS, assume administration
of the Program.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13466, Apr. 10, 1990;
64 FR 72483, Dec. 28, 1999]
Subpart B_State Agency Provisions
Sec. 225.4 Program management and administration plan.
(a) Not later than February 15 of each year, each State agency shall
submit to FNSRO a Program management
[[Page 132]]
and administration plan for that fiscal year.
(b) Each plan shall be acted on or approved by March 15 or, if it is
submitted late, within 30 calendar days of receipt of the plan. If the
plan initially submitted is not approved, the State agency and FNS shall
work together to ensure that changes to the plan, in the form of
amendments, are submitted so that the plan can be approved within 60
calendar days following the initial submission of the plan. Upon
approval of the plan, the State agency shall be notified of the level of
State administrative funding which it is assured of receiving under
Sec. 225.5(a)(3).
(c) Approval of the Plan by FNS shall be a prerequisite to the
withdrawal of Program funds by the State from the Letter of Credit and
to the donation by the Department of any commodities for use in the
State's Program.
(d) The Plan must include, at a minimum, the following information:
(1) The State's administrative budget for the fiscal year, and the
State's plan to comply with any standards prescribed by the Secretary
for the use of these funds;
(2) The State's plan for use of Program funds and funds from within
the State to the maximum extent practicable to reach needy children;
(3) The State's plans for providing technical assistance and
training to eligible sponsors;
(4) The State's plans for monitoring and inspecting sponsors,
feeding sites, and food service management companies and for ensuring
that such companies do not enter into contracts for more meals than they
can provide effectively and efficiently;
(5) The State's plan for timely and effective action against Program
violators;
(6) The State's plan for ensuring the fiscal integrity of sponsors
not subject to auditing requirements prescribed by the Secretary;
(7) The State's plan for ensuring compliance with the food service
managment company procurement monitoring requirements set forth at Sec.
225.6(h); and
(8) An estimate of the State's need, if any, for monies available to
pay for the cost of conducting health inspections and meal quality
tests.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13466, Apr. 10, 1990;
64 FR 72483, Dec. 28, 1999]
Sec. 225.5 Payments to State agencies and use of Program funds.
(a) State administrative funds--(1) Administrative funding formula.
For each fiscal year, FNS shall pay to each State agency for
administrative expenses incurred in the Program an amount equal to
(i) 20 percent of the first $50,000 in Program funds properly
payable to the State in the preceding fiscal year;
(ii) 10 percent of the next $100,000 in Program funds properly
payable to the State in the preceding fiscal year;
(iii) 5 percent of the next $250,000 in Program funds properly
payable to the State in the preceding fiscal year; and
(iv) 2\1/2\ percent of any remaining Program funds properly payable
to the State in the preceding fiscal year,
Provided, however, That FNS may make appropriate adjustments in the
level of State administrative funds to reflect changes in Program size
from the preceding fiscal year as evidenced by information submitted in
the State Program management and administration plan and any other
information available to FNS. If a State agency fails to submit timely
and accurate reports under Sec. 225.8(c) of this part, State
administrative funds payable under this paragraph shall be subject to
sanction. For such failure, FNS may recover, withhold, or cancel payment
of up to one hundred percent of the funds payable to the State agency
under this paragraph during the fiscal year.
(2) Use of State administrative funds. State administrative funds
paid to any State shall be used by State agencies to employ personnel,
including travel and related expenses, and to supervise and give
technical assistance to sponsors in their initiation, expansion, and
conduct of any food service for which Program funds are made available.
State agencies may also use administrative funds for such other
administrative expenses as are set forth in their approved Program
management and administration plan.
[[Page 133]]
(3) Funding assurance. At the time FNS approves the State's
management and administration plan, the State shall be assured of
receiving State administrative funding equal to the lesser of the
following amounts: 80 percent of the amount obtained by applying the
formula set forth in paragraph (a)(1) of this section to the total
amount of Program payments made within the State during the prior fiscal
year; or, 80 percent of the amount obtained by applying the formula set
forth in paragraph (a)(1) to the amount of Program funds estimated to be
needed in the management and administration plan. The State agency shall
be assured that it will receive no less than this level unless FNS
determines that the State agency has failed or is failing to meet its
responsibilities under this part.
(4) Limitation. In no event may the total payment for State
administrative costs in any fiscal year exceed the total amount of
expenditures incurred by the State agency in administering the Program.
(b) State administrative funds Letter of Credit. (1) At the
beginning of each fiscal year, FNS shall make available to each
participating State agency by Letter of Credit an initial allocation of
State administrative funds for use in that fiscal year. This allocation
shall not exceed one-third of the administrative funds provided to the
State in the preceding fiscal year. For State agencies which did not
receive any Program funds during the preceding fiscal year, the amount
to be made available shall be determined by FNS.
(2) Additional State administrative funds shall be made available
upon the receipt and approval by FNS of the State's Program management
and administration plan. The amount of such funds, plus the initial
allocation, shall not exceed 80 percent of the State administrative
funds determined by the formula set forth in paragraph (a)(1) of this
section and based on the estimates set forth in the approved Program
management and administration plan.
(3) Any remaining State administrative funds shall be paid to each
State agency as soon as practicable after the conduct of the funding
assessment described in paragraph (c) of this section. However,
regardless of whether such assessment is made, the remaining
administrative funds shall be paid no later than September 1. The
remaining administrative payment shall be in an amount equal to that
determined to be needed during the funding evaluation or, if such
evaluation is not conducted, the amount owed the State in accordance
with paragraph (a)(1) of this section, less the amounts paid under
paragraphs (b) (1) and (2) of this section.
(c) Administrative funding evaluation. FNSRO shall conduct data on
the need for Program and State administrative funding within any State
agency if the funding needs estimated in a State's management and
administration plan are no longer accurate. Based on this data, FNS may
make adjustments in the level of State administrative funding paid or
payable to the State agency under paragraph (b) of this section to
reflect changes in the size of the State's Program as compared to that
estimated in its management and administration plan. The data shall be
based on approved Program participation levels and shall be collected
during the period of Program operations. As soon as possible following
this data collection, payment of any additional administrative funds
owed shall be made to the State agency. The payment may reflect
adjustments made to the level of State administrative funding based on
the information collected during the funding assessment. However, FNS
shall not decrease the amount of a State's administrative funds as a
result of this assessment unless the State failed to make reasonable
efforts to administer the Program as proposed in its management and
administration plan or the State incurred unnecessary expenses.
(d) Letter of Credit for Program payments. (1) Not later than April
15 of each fiscal year, FNS shall make available to each participating
State in a Letter of Credit an amount equal to 65 percent of the
preceding fiscal year's Program payments for operating costs plus 65
percent of the preceding fiscal year's Program payments for
administrative costs in the State. This amount may be adjusted to
reflect changes in reimbursement rates made pursuant to Sec.
225.9(d)(8). However, the State shall not withdraw funds from this
Letter of
[[Page 134]]
Credit until its Program management and administration plan is approved
by FNS.
(2) Based on the State agency's approved management and
administration plan, FNS shall, if necessary, adjust the State's Letter
of Credit to ensure that 65 percent of estimated current year Program
operating and administrative funding needs is available. Such adjustment
shall be made no later than May 15, or within 90 days of FNS receipt of
the State agency's management and administration plan, whichever date is
later.
(3) Subsequent to the adjustment provided for in paragraph (d)(2) of
this section, FNS will, if necessary, make one additional adjustment to
ensure that the State agency's Letter of Credit contains at least 65
percent of the Program operating and administrative funds needed during
the current fiscal year. Such adjustment may be based on the
administrative funding assessment provided for in paragraph (c) of this
section, if one is conducted, or on any additional information which
demonstrates that the funds available in the Letter of Credit do not
equal at least 65 percent of current year Program needs. In no case will
such adjustments be made later than September 1. Funds made available in
the Letter of Credit shall be used by the State agency to make Program
payments to sponsors.
(4) The Letter of Credit shall include sufficient funds to enable
the State agency to make advance payments to sponsors serving areas in
which schools operate under a continuous school calendar. These funds
shall be made available no later than the first day of the month prior
to the month during which the food service will be conducted.
(5) FNS shall make available any remaining Program funds due within
45 days of the receipt of valid claims for reimbursement from sponsors
by the State agency. However, no payment shall be made for claims
submitted later than 60 days after the month covered by the claim unless
an exception is granted by FNS.
(6) Each State agency shall release to FNS any Program funds which
it determines are unobligated as of September 30 of each fiscal year.
Release of funds by the State agency shall be made as soon as
practicable, but in no event later than 30 calendar days following
demand by FNS, and shall be accomplished by an adjustment in the State
agency's Letter of Credit.
(e) Adjustment to Letter of Credit. Prior to May 15 of each fiscal
year, FNS shall make any adjustments necessary in each State's Letter of
Credit to reflect actual expenditures in the preceding fiscal year's
Program.
(f) Health inspection funds. If the State agency's approved
management and administration plan estimates a need for health
inspection funding, FNS shall make available by letter of credit an
amount up to one percent of Program funds estimated to be needed in the
management and administration plan. Such amount may be adjusted, based
on the administrative funding assessment provided for in paragraph (c)
of this section, if such assessment is conducted. Health inspection
funds shall be used solely to enable State or local health departments
or other governmental agencies charged with health inspection functions
to carry out health inspections and meal quality tests, provided that if
these agencies cannot perform such inspections or tests, the State
agency may use the funds to contract with an independent agency to
conduct the inspection or meal quality tests. Funds so provided but not
expended or obligated shall be returned to the Department by September
30 of the same fiscal year.
Sec. 225.6 State agency responsibilities.
(a) General responsibilities. (1) The State agency shall provide
sufficient qualified consultative, technical, and managerial personnel
to administer the Program, monitor performance, and measure progress in
achieving Program goals. The State agency shall assign Program
responsibilities to personnel to ensure that all applicable requirements
under this part are met.
(2) By February 1 of each fiscal year, each State agency shall
announce the purpose, eligibility criteria, and availability of the
Program throughout the State, through appropriate means of
communication. As part of this effort, each State agency shall identify
rural areas, Indian tribal territories, and
[[Page 135]]
areas with a concentration of migrant farm workers which qualify for the
Program and actively seek eligible applicant sponsors to serve such
areas. State agencies shall identify priority outreach areas in
accordance with FNS guidance and target outreach efforts in these areas.
State agencies shall identify priority outreach areas in accordance with
FNS guidance and target outreach efforts in these areas.
(3) Each State agency shall require applicant sponsors submitting
Program application site information sheets, Program agreements, or a
request for advance payments, and sponsors submitting claims for
reimbursement to certify that the information submitted on these forms
is true and correct and that the sponsor is aware that deliberate
misrepresentation or withholding of information may result in
prosecution under applicable State and Federal statutes.
(4) In addition to the warnings specified in paragraph (a)(3) of
this section, State agencies may include the following information on
applications and pre-application materials distributed to prospective
sponsors:
(i) The criminal penalties and provisions established in section
12(g) of the National School Lunch Act (42 U.S.C. 1760(g)) that states
substantially: Whoever embezzles, willfully misapplies, steals, or
obtains by fraud any funds, assets, or property that are the subject of
a grant or other form of assistance under this Act or the Child
Nutrition Act of 1966 (42 U.S.C. 1771 et seq.), whether received
directly or indirectly from the United States Department of Agriculture,
or whoever receives, conceals, or retains such funds, assets, or
property to personal use or gain, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud shall, if such funds, assets, or property are of the value of
$100 or more, be fined not more than $25,000 or imprisoned not more than
five years, or both, or, if such funds, assets, or property are of a
value of less than $100, shall be fined not more than $1,000 or
imprisoned for not more than one year, or both.
(ii) The procedures for termination from Program participation of
any site or sponsor which is determined to be seriously deficient in its
administration of the Program. In addition, the application may also
state that appeals of sponsor or site terminations will follow
procedures mandated by the State agency and will also meet the minimum
requirements of 7 CFR 225.13.
(b) Approval of sponsor applications. (1) Each State agency must
inform all of the previous year's sponsors which meet current
eligibility requirements and all other potential sponsors of the
deadline date for submitting a written application for participation in
the Program. The State agency must require that all applicant sponsors
submit written applications for Program participation to the State
agency by June 15. However, the State agency may establish an earlier
deadline for the Program application submission. Sponsors applying for
participation in the Program due to an unanticipated school closure
during the period from October through April (or at any time of the year
in an area with a continuous school calendar) shall be exempt from the
application submission deadline.
(2) Each State agency shall inform potential sponsors of the
procedure for applying for advance operating and administrative costs
payments as provided for in Sec. 225.9(c). Where applicable, each State
agency shall inform sponsors of the procedure for applying for start-up
payments provided for in Sec. 225.9(a).
(3) Within 30 days of receiving a complete and correct application,
the State agency shall notify the applicant of its approval or
disapproval. If an incomplete application is received, the State agency
shall so notify the applicant within 15 days and shall provide technical
assistance for the purpose of completing the application. Any
disapproved applicant shall be notified of its right to appeal under
Sec. 225.13.
(4) The State agency shall determine the eligibility of sponsors
applying for participation in the Program in accordance with the
applicant sponsor eligibility criteria outlined in Sec. 225.14.
However, State agencies may approve the application of an otherwise
eligible applicant sponsor which does not provide a year-round service
to the community which it proposes to serve under the
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Program only if it meets one or more of the following criteria: It is a
residential camp; it proposes to provide a food service for the children
of migrant workers; a failure to do so would deny the Program to an area
in which poor economic conditions exist; a significant number of needy
children will not otherwise have reasonable access to the Program; or it
proposes to serve an area affected by an unanticipated school closure
during the period from October through April (or at any time of the year
in an area with a continuous school calendar). In addition, the State
agency may approve a sponsor for participation during an unanticipated
school closure without a prior application if the sponsor participated
in the program at any time during the current year or in either of the
prior two calendar years.
(5) The State agency must use the following priority system in
approving applicants to operate sites that propose to serve the same
area or the same enrolled children:
(i) Public or nonprofit private school food authorities;
(ii) Public agencies and private nonprofit organizations that have
demonstrated successful program performance in a prior year;
(iii) New public agencies; and
(iv) New private nonprofit organizations.
(v) If two or more sponsors that qualify under paragraph (b)(5)(ii)
of this section apply to serve the same area, the State agency must
determine on a case-by-case basis which sponsor or sponsors it will
select to serve the needy children in the area. The State agency should
consider the resources and capabilities of each applicant.
(6) The following limitations apply on the number of sites and
children that may be served per day:
(i) The State agency must not approve any school food authority or
public agency to operate more than 200 sites or to serve more than an
average of 50,000 children per day. However, the State agency may
approve exceptions if the applicant can demonstrate that it has the
capability of managing a program larger than these limits.
(ii) The State agency must not approve any private nonprofit
organization to operate more than 25 sites. In addition, the State
agency must not approve any private nonprofit organization to serve more
than 300 children at any one site for any approved meal service.
However, the State agency may grant a waiver to allow up to 500 children
served at any one site operated by a private nonprofit organization. To
be approved for the waiver, the private nonprofit organization must
demonstrate that it is fully capable of managing a site with more than
300 children and that there are no other sponsors capable of serving the
children in excess of 300.
(7) The State agency shall review each applicant's administrative
budget as a part of the application approval process in order to assess
the applicant's ability to operate in compliance with these regulations
within its projected reimbursement. In approving the applicant's
administrative budget, the State agency shall take into consideration
the number of sites and children to be served, as well as any other
relevant factors. A sponsor's administrative budget shall be subject to
review for adjustments by the State agency if the sponsor's level of
site participation or the number of meals served to children changes
significantly.
(8) Applicants which qualify as camps shall be approved for
reimbursement only for meals served free to enrolled children who meet
the Program's eligibility standards.
(9) The State agency shall not approve the application of any
applicant sponsor identifiable through its organization or principals as
a sponsor which has been determined to be seriously deficient as
described in Sec. 225.11(c). However, the State agency may approve the
application of a sponsor which has been disapproved or terminated in
prior years in accordance with this paragraph if the applicant
demonstrates to the satisfaction of the State agency that it has taken
appropriate corrective actions to prevent recurrence of the
deficiencies.
(10) If the sponsor's application to participate is denied, the
official making the determination of denial must notify the applicant
sponsor in writing stating all of the grounds on which the
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State agency based the denial. Pending the outcome of a review of a
denial, the State agency shall proceed to approve other applicants in
accordance with its responsibilities under paragraph (b)(5) of this
section, without regard to the application under review.
(11) The State agency shall not approve the application of any
applicant sponsor which submits fraudulent information or documentation
when applying for Program participation or which knowingly withholds
information that may lead to the disapproval of its application.
Complete information regarding such disapproval of an applicant shall be
submitted by the State agency through FNSRO to OIG.
(c) Content of sponsor application.--(1) Application forms. The
applicant shall submit a written application to the State agency for
participation in the Program as a sponsor. Sponsors proposing to serve
an area affected by an unanticipated school closure during the period
from October through April (or at any time of the year in an area with a
continuous school calendar) may be exempt, at the discretion of the
State agency, from submitting a new application if they have
participated in the program at any time during the current year or in
either of the prior two calendar years. The State agency may use the
application form developed by FNS, or it may develop an application
form, for use in the Program. Application shall be made on a timely
basis in accordance with the deadline date established under Sec.
225.6(b)(1).
(2) Requirements for new sponsors, new sites, and, as determined by
the State agency, sponsors and sites which have experienced significant
operational problems in the prior year.--(i) Site information sheets. At
a minimum, the application submitted by new sponsors and by sponsors
which, in the determination of the State agency, have experienced
significant operational problems in the prior year shall include a site
information sheet, as developed by the State agency, for each site where
a food service operation is proposed. The site information sheet for new
sponsors and new sites, and for sponsors and sites which, in the
determination of the State agency, have experienced significant
operational problems in the current year must demonstrate or describe
the following:
(A) An organized and supervised system for serving meals to
attending children;
(B) The estimated number and types of meals to be served and the
times of service;
(C) Arrangements, within standards prescribed by the State or local
health authorities, for delivery and holding of meals until time of
service, and arrangements for storing and refrigerating any leftover
meals until the next day;
(D) Arrangements for food service during periods of inclement
weather;
(E) Access to a means of communication for making necessary
adjustments in the number of meals delivered in accordance with the
number of children attending daily at each site;
(F) Whether the site is rural, as defined in Sec. 225.2, or non-
rural, and whether the site's food service will be self-prepared or
vended;
(G) For open sites and restricted open sites, documentation
supporting the eligibility of each site as serving an area in which poor
economic conditions exist. However, for sites that a sponsor proposes to
serve during an unanticipated school closure during the period from
October through April (or at any time of the year in an area with a
continuous school calendar), any site which has participated in the
Program at any time during the current year or in either of the prior
two calendar years shall be considered eligible without new
documentation;
(H) For closed enrolled sites, the projected number of children
enrolled and the projected number of children eligible for free and
reduced price meals for each of these sites;
(I) For NYSP sites, certification from the sponsor that all of the
children who will receive Program meals are enrolled participants in the
NYSP;
(J) For camps, the number of children enrolled in each session who
meet the Program's income standards. If such information is not
available at the time of application, it shall be submitted as soon as
possible thereafter and in no case later than the filing of the camp's
claim for reimbursement for each session;
[[Page 138]]
(K) For those sites at which applicants will serve children of
migrant workers, certification from a migrant organization which attests
that the site serves children of migrant worker families. If the site
also serves non-migrant children, the sponsor shall certify that the
site predominantly serves migrant children; and
(L) For a site that serves homeless children, information sufficient
to demonstrate that the site is not a residential child care
institution, as defined in paragraph (c) of the definition of school in
Sec. 210.2 of this chapter. If cash payments, food stamps, or any in-
kind service are required of any meal recipient at these sites, sponsors
must describe the method(s) used to ensure that no such payments or
services are received for any Program meal served to children. In
addition, sponsors must certify that such sites employ meal counting
methods which ensure that reimbursement is claimed only for meals served
to children.
(ii) Other application requirements. New sponsors and sponsors which
in the determination of the State agency have experienced significant
operational problems in the prior year shall also include in their
applications:
(A) Information in sufficient detail to enable the State agency to
determine whether the applicant meets the criteria for participation in
the Program as set forth in Sec. 225.14; the extent of Program payments
needed, including a request for advance payments and start-up payments,
if applicable; and a staffing and monitoring plan;
(B) A complete administrative and operating budget for State agency
review and approval. The administrative budget shall contain the
projected administrative expenses which a sponsor expects to incur
during the operation of the Program, and shall include information in
sufficient detail to enable the State agency to assess the sponsor's
ability to operate the Program within its estimated reimbursement. A
sponsor's approved administrative budget shall be subject to subsequent
review by the State agency for adjustments in projected administrative
costs;
(C) A summary of how meals will be obtained (e.g., self-prepared at
each site, self-prepared and distributed from a central kitchen,
purchased from a school food authority, competitively procured from a
food service management company, etc.). If an invitation for bid is
required under Sec. 225.15(h), sponsors shall also submit a schedule
for bid dates, and a copy of their invitation for bid; and
(D) For each applicant which seeks approval under Sec. 225.14(b)(3)
as a unit of local, municipal, county or State government, or under
Sec. 225.14(b)(5) as a private nonprofit organization, certification
that it will directly operate the Program in accordance with Sec.
225.14(d)(3).
(3) Requirements for experienced sponsors and experienced sites.--
(i) Site information sheets. At a minimum, the application submitted by
experienced sponsors shall include a site information sheet, as
developed by the State agency, for each site where a food service
operation is proposed. The site information sheet for experienced
sponsors and experienced sites must demonstrate or describe the
information below. The State agency also may require experienced
sponsors and experienced sites to provide any of the information
required in paragraph (c)(2) of this section.
(A) The estimated number and types of meals to be served and the
times of service;
(B) For open sites and restricted open sites, new documentation
supporting the eligibility of each site as serving an area in which poor
economic conditions exist shall be submitted. Such documentation shall
be submitted every three years when school data are used. When census
data are used, such documentation shall be submitted when new census
data are available, or earlier if the State agency believes that an
area's socioeconomic status has changed significantly since the last
census. For sites that a sponsor proposes to serve during an
unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar), any site which has participated in the Program at any time
during the current year or in either of the prior two calendar years
shall be considered eligible without
[[Page 139]]
new documentation of serving an area in which poor economic conditions
exist;
(C) For closed enrolled sites, the projected number of children
enrolled and the projected number of children eligible for free and
reduced price school meals for each of these sites; and
(D) For camps, the number of children enrolled in each session who
meet the Program's income standards. If such information is not
available at the time of application, it shall be submitted as soon as
possible thereafter and in no case later than the filing of the camp's
claim for reimbursement for each session.
(ii) Other application requirements. Experienced sponsors shall also
include on their applications:
(A) The extent of Program payments needed, including a request for
advance payments and start-up payments, if applicable, and a staffing
and monitoring plan;
(B) A complete administrative and operating budget for State agency
review and approval. The administrative budget shall contain the
projected administrative expenses which a sponsor expects to incur
during the operation of the Program, and shall include information in
sufficient detail to enable the State agency to assess the sponsor's
ability to operate the Program within its estimated reimbursement. A
sponsor's approved administrative budget shall be subject to subsequent
review by the State agency for adjustments in projected administrative
costs; and
(C) If an invitation for bid is required under Sec. 225.15(g), a
schedule for bid dates. Sponsors shall also submit a copy of the
invitation for bid if it is changed from the previous year. If the
method of procuring meals is changed, sponsors shall submit a summary of
how meals will be obtained (e.g., self-prepared at each site, self-
prepared and distributed from a central kitchen, purchased from a school
food authority, competitively procured from a food service management
company, etc.).
(4) Free meal policy statement. (i) Each applicant must submit a
statement of nondiscrimination in its policy for serving meals to
children. The statement must consist of an assurance that all children
are served the same meals and that there is no discrimination in the
course of the food service. A school sponsor must submit the policy
statement only once, with the initial application to participate as a
sponsor. However, if there is a substantive change in the school's free
and reduced price policy, a revised policy statement must be provided at
the State agency's request. In addition to the policy of service/
nondiscrimination statement described in paragraph (c)(3) of this
section, all applicants except camps must include a statement that the
meals served are free at all sites.
(ii) In addition to the policy of service/nondiscrimination
statement described in paragraph (c)(3) of this section, all applicants
that are camps that charge separately for meals must include the
following:
(A) A statement that the eligibility standards conform to the
Secretary's family size and income standards for reduced price school
meals;
(B) A description of the method or methods to be used in accepting
applications from families for Program meals. Such methods must ensure
that households are permitted to apply on behalf of children who are
members of households receiving food stamp, FDPIR, or TANF benefits
using the categorical eligibility procedures described in Sec.
225.15(f);
(C) A description of the method used by camps for collecting
payments from children who pay the full price of the meal while
preventing the overt identification of children receiving a free meal;
(D) An assurance that the camp will establish a hearing procedure
for families wishing to appeal a denial of an application for free
meals. Such hearing procedures shall meet the requirements set forth in
paragraph (c)(5) of this section;
(E) An assurance that, if a family requests a hearing, the child
shall continue to receive free meals until a decision is rendered; and
(F) An assurance that there will be no overt identification of free
meal recipients and no discrimination against any child on the basis of
race, color, national origin, sex, age, or handicap.
[[Page 140]]
(5) Hearing procedures statement.Each applicant that is a camp shall
submit with its application a copy of its hearing procedures. At a
minimum, these procedures shall provide:
(i) That a simple, publicly announced method will be used for a
family to make an oral or written request for a hearing;
(ii) That the family will have the opportunity to be assisted or
represented by an attorney or other person;
(iii) That the family will have an opportunity to examine the
documents and records supporting the decision being appealed both before
and during the hearing;
(iv) That the hearing will be reasonably prompt and convenient for
the family;
(v) That adequate notice will be given to the family of the time and
place of the hearing;
(vi) That the family will have an opportunity to present oral or
documentary evidence and arguments supporting its position;
(vii) That the family will have an opportunity to question or refute
any testimony or other evidence and to confront and cross-examine any
adverse witnesses;
(viii) That the hearing shall be conducted and the decision made by
a hearing official who did not participate in the action being appealed;
(ix) That the decision shall be based on the oral and documentary
evidence presented at the hearing and made a part of the record;
(x) That the family and any designated representative shall be
notified in writing of the decision;
(xi) That a written record shall be prepared for each hearing which
includes the action being appealed, any documentary evidence and a
summary of oral testimony presented at the hearing, the decision and the
reasons for the decision, and a copy of the notice sent to the family;
and
(xii) That the written record shall be maintained for a period of
three years following the conclusion of the hearing, during which it
shall be available for examination by the family or its representatives
at any reasonable time and place.
(d) Approval of sites. (1) When evaluating a proposed food service
site, the State agency shall ensure that:
(i) If not a camp, the proposed site serves an area in which poor
economic conditions exist, as defined by Sec. 225.2;
(ii) The area which the site proposes to serve is not or will not be
served in whole or in part by another site, unless it can be
demonstrated to the satisfaction of the State agency that each site will
serve children not served by any other site in the same area for the
same meal;
(iii) The site is approved to serve no more than the number of
children for which its facilities are adequate and;
(iv) If it is a site proposed to operate during an unanticipated
school closure, it is a non-school site.
(2) When approving the application of a site which will serve meals
prepared by a food service management company, the State agency shall
establish for each meal service an approved level for the maximum number
of children's meals which may be served under the Program. These
approved levels shall be established in accordance with the following
provisions:
(i) The initial maximum approved level shall be based upon the
historical record of attendance at the site if such a record has been
established in prior years and the State agency determines that it is
accurate. The State agency shall develop a procedure for establishing
initial maximum approved levels for sites when no accurate record from
prior years is available.
(ii) The maximum approved level shall be adjusted, if warranted,
based upon information collected during site reviews. If attendance at
the site on the day of the review is significantly below the site's
approved level, the State agency should consider making a downward
adjustment in the approved level with the objective of providing only
one meal per child.
(iii) The sponsor may seek an upward adjustment in the approved
level for its sites by requesting a site review or by providing the
State agency with evidence that attendance exceeds the sites' approved
levels.
(iv) Whenever the State agency establishes or adjusts approved
levels of
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meal service for a site, it shall document the action in its files, and
it shall provide the sponsor with immediate written confirmation of the
approved level.
(v) Upon approval of its application or any adjustment to its
maximum approved levels, the sponsor shall inform the food service
management company with which it contracts of the approved level for
each meal service at each site served by the food service management
company. This notification of any adjustments in approved levels shall
take place within the time frames set forth in the contract for
adjusting meal orders. Whenever the sponsor notifies the food service
management company of the approved levels or any adjustments to these
levels for any of its sites, the sponsor shall clearly inform the food
service management company that an approved level of meal service
represents the maximum number of meals which may be served at a site and
is not a standing order for a specific number of meals at that site.
When the number of children attending is below the site's approved
level, the sponsor shall adjust meal orders with the objective of
serving only one meal per child as required under Sec. 225.15(b)(3).
(e) State-Sponsor Agreement. A sponsor approved for participation in
the Program must enter into a written agreement with the State agency.
If the sponsor is a school food authority that operates more than one
child nutrition program (e.g., the National School Lunch Program, the
School Breakfast Program, or the Child and Adult Care Food Program)
under a single State agency, a single permanent agreement that includes
all the child nutrition programs must be executed with the State agency,
as described in Sec. 210.9(b) of this chapter. All sponsors must agree
in writing to:
(1) Operate a nonprofit food service during the period specified, as
follows:
(i) From May through September for children on school vacation;
(ii) At any time of the year, in the case of sponsors administering
the Program under a continuous school calendar system; or
(iii) During the period from October through April, if it serves an
area affected by an unanticipated school closure due to a natural
disaster, major building repairs, court orders relating to school safety
or other issues, labor-management disputes, or, when approved by the
State agency, a similar cause.
(2) For school food authorities, offer meals which meet the
requirements and provisions set forth in Sec. 225.16 during times
designated as meal service periods by the sponsor, and offer the same
meals to all children;
(3) For all other sponsors, serve meals which meet the requirements
and provisions set forth in Sec. 225.16 during times designated as meal
service periods by the sponsor, and serve the same meals to all
children;
(4) Serve meals without cost to all children, except that camps may
charge for meals served to children who are not served meals under the
Program;
(5) Issue a free meal policy statement in accordance with Sec.
225.6(c);
(6) Meet the training requirement for its administrative and site
personnel, as required under Sec. 225.15(d)(1);
(7) Claim reimbursement only for the type or types of meals
specified in the agreement and served without charge to children at
approved sites during the approved meal service period, except that
camps shall claim reimbursement only for the type or types of meals
specified in the agreement and served without charge to children who
meet the Program's income standards. The agreement shall specify the
approved levels of meal service for the sponsor's sites if such levels
are required under Sec. 225.6(d)(2). No permanent changes may be made
in the serving time of any meal unless the changes are approved by the
State agency;
(8) Submit claims for reimbursement in accordance with procedures
established by the State agency, and those stated in Sec. 225.9;
(9) In the storage, preparation and service of food, maintain proper
sanitation and health standards in conformance with all applicable State
and local laws and regulations;
(10) Accept and use, in quantities that may be efficiently utilized
in the Program, such foods as may be offered as a donation by the
Department;
[[Page 142]]
(11) Have access to facilities necessary for storing, preparing, and
serving food;
(12) Maintain a financial management system as prescribed by the
State agency;
(13) Maintain on file documentation of site visits and reviews in
accordance with Sec. 225.15(d) (2) and (3);
(14) Upon request, make all accounts and records pertaining to the
Program available to State, Federal, or other authorized officials for
audit or administrative review, at a reasonable time and place. The
records shall be retained for a period of 3 years after the end of the
fiscal year to which they pertain, unless audit or investigative
findings have not been resolved, in which case the records shall be
retained until all issues raised by the audit or investigation have been
resolved;
(15) Maintain children on site while meals are consumed; and
(16) Retain final financial and administrative responsibility for
its program.
(f) Special Account. In addition, the State agency may require any
vended sponsor to enter into a special account agreement with the State
agency. The special account agreement shall stipulate that the sponsor
shall establish a special account with a State agency or Federally
insured bank for operating costs payable to the sponsor by the State.
The agreement shall also stipulate that any disbursement of monies from
the account must be authorized by both the sponsor and the food service
management company. The special account agreement may contain such other
terms, agreed to by both the sponsor and the food service management
company, which are consistent with the terms of the contract between the
sponsor and the food service management company. A copy of the special
account agreement shall be submitted to the State agency and another
copy maintained on file by the sponsor. Any charges made by the bank for
the account described in this section shall be considered an allowable
sponsor administrative cost.
(g) Food service management company registration. A State agency may
require each food service management company, operating within the
State, to register based on State procedures. A State agency may further
require the food service management company to certify that the
information submitted on its application for registration is true and
correct and that the food service management company is aware that
misrepresentation may result in prosecution under applicable State and
Federal statutes.
(h) Monitoring of food service management company procurements. (1)
The State agency shall ensure that sponsors' food service management
company procurements are carried out in accordance with Sec. Sec.
225.15(h) and 225.17 of this part.
(2) Each State agency shall develop a standard form of contract for
use by sponsors in contracting with food service management companies.
Sponsors which are public entities, sponsors with exclusive year-round
contracts with a food service management company, and sponsors whose
food service management company contract(s) do not exceed $10,000 in
aggregate value may use their existing or usual form of contract,
provided that such form of contract has been submitted to and approved
by the State agency. The standard contract developed by the State agency
shall expressly and without exception provide that:
(i) All meals prepared by a food service management company shall be
unitized, with or without milk or juice, unless the State agency has
approved, pursuant to paragraph (h)(3) of this section, a request for
exceptions to the unitizing requirement for certain components of a
meal;
(ii) A food service management company entering into a contract with
a sponsor under the Program shall not subcontract for the total meal,
with or without milk, or for the assembly of the meal;
(iii) The sponsor shall provide to the food service management
company a list of State agency approved food service sites, along with
the approved level for the number of meals which may be claimed for
reimbursement for each site, established under Sec. 225.6(d)(2), and
shall notify the food service management company of all sites which have
been approved, cancelled, or terminated subsequent to the submission of
the initial approved site list and of any
[[Page 143]]
changes in the approved level of meal service for a site. Such
notification shall be provided within the time limits mutually agreed
upon in the contract;
(iv) The food service management company shall maintain such records
(supported by invoices, receipts, or other evidence) as the sponsor will
need to meet its responsibilities under this part, and shall submit all
required reports to the sponsor promptly at the end of each month,
unless more frequent reports are required by the sponsor;
(v) The food service management company must have State or local
health certification for the facility in which it proposes to prepare
meals for use in the Program. It must ensure that health and sanitation
requirements are met at all times. In addition, the food service
management company must ensure that meals are inspected periodically to
determine bacteria levels present in the meals and that the bacteria
levels found to be present in the meals conform with the standards set
by local health authorities. The results of the inspections must be
submitted promptly to the sponsor and to the State agency.
(vi) The meals served under the contract shall conform to the cycle
menus and meal quality standards and food specifications approved by the
State agency and upon which the bid was based;
(vii) The books and records of the food service management company
pertaining to the sponsor's food service operation shall be available
for inspection and audit by representatives of the State agency, the
Department and the U.S. General Accounting Office at any reasonable time
and place for a period of 3 years from the date of receipt of final
payment under the contract, except that, if audit or investigation
findings have not been resolved, such records shall be retained until
all issues raised by the audit or investigation have been resolved;
(viii) The sponsor and the food service management company shall
operate in accordance with current Program regulations;
(ix) The food service management company shall be paid by the
sponsor for all meals delivered in accordance with the contract and this
part. However, neither the Department nor the State agency assumes any
liability for payment of differences between the number of meals
delivered by the food service management company and the number of meals
served by the sponsor that are eligible for reimbursement;
(x) Meals shall be delivered in accordance with a delivery schedule
prescribed in the contract;
(xi) Increases and decreases in the number of meals ordered shall be
made by the sponsor, as needed, within a prior notice period mutually
agreed upon;
(xii) All meals served under the Program shall meet the requirements
of Sec. 225.16;
(xiii) In cases of nonperformance or noncompliance on the part of
the food service management company, the company shall pay the sponsor
for any excess costs which the sponsor may incur by obtaining meals from
another source;
(xiv) If the State agency requires the sponsor to establish a
special account for the deposit of operating costs payments in
accordance with the conditions set forth in Sec. 225.6(f), the contract
shall so specify;
(xv) The food service management company shall submit records of all
costs incurred in the sponsor's food service operation in sufficient
time to allow the sponsor to prepare and submit the claim for
reimbursement to meet the 60-day submission deadline; and
(xvi) The food service management company shall comply with the
appropriate bonding requirements, as set forth in Sec. 225.15(h)(6)
through (h)(8).
(3) All meals prepared by a food service management company shall be
unitized, with or without milk or juice, unless the sponsor submits to
the State agency a request for exceptions to the unitizing requirement
for certain components of a meal. These requests shall be submitted to
the State agency in writing in sufficient time for the State agency to
respond prior to the sponsor's advertising for bids. The State agency
shall notify the sponsor in writing of its determination in a timely
manner.
[[Page 144]]
(4) Each State agency shall have a representative present at all
food service management company procurement bid openings when sponsors
are expected to receive more than $100,000 in Program payments.
(5) Copies of all contracts between sponsors and food service
management companies, along with a certification of independent price
determination, shall be submitted to the State agency prior to the
beginning of Program operations. Sponsors shall also submit to the State
agency copies of all bids received and their reason for selecting the
food service management company chosen.
(6) All bids in an amount which exceeds the lowest bid shall be
submitted to the State agency for approval before acceptance. All bids
totaling $100,000 or more shall be submitted to the State agency for
approval before acceptance. State agencies shall respond to a request
for approval of such bids within 5 working days of receipt.
(7) Failure by a sponsor to comply with the provisions of this
paragraph or Sec. 225.15(h)(1) shall be sufficient grounds for the
State agency to terminate participation by the sponsor in accordance
with Sec. 225.18(b).
(i) Meal pattern exceptions. The State agency shall review and act
upon requests for exceptions to the meal pattern in accordance with the
guidelines and limitations set forth in Sec. 225.16.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13467, Apr. 10, 1990; ;
64 FR 72484, Dec. 28, 1999; 64 FR 72896, Dec. 29, 1999; 72 FR 10895,
Mar. 12, 2007]
Sec. 225.7 Program monitoring and assistance.
(a) Training. Prior to the beginning of Program operations, each
State agency shall make available training in all necessary areas of
Program administration to sponsor personnel, food service management
company representatives, auditors, and health inspectors who will
participate in the Program in that State. Prior to Program operations,
the State agency shall ensure that the sponsor's supervisory personnel
responsible for the food service receive training in all necessary areas
of Program administration and operations. This training shall reflect
the fact that individual sponsors or groups of sponsors require
different levels and areas of Program training. State agencies are
encouraged to utilize in such training, and in the training of site
personnel, sponsor personnel who have previously participated in the
Program. Training should be made available at convenient locations.
State agencies are not required to conduct this training for sponsors
operating the Program during unanticipated school closures during the
period from October through April (or at any time of the year in an area
with a continuous school calendar).
(b) Program materials. Each State agency shall develop and make
available all necessary Program materials in sufficient time to enable
applicant sponsors to prepare adequately for the Program.
(c) Food specifications and meal quality standards. With the
assistance of the Department, each State agency shall develop and make
available to all sponsors minimum food specifications and model meal
quality standards which shall become part of all contracts between
vended sponsors and food service management companies.
(d) Program monitoring and assistance. The State agency shall
conduct Program monitoring and provide Program assistance according to
the following provisions:
(1) Pre-approval visits. The State agency shall conduct pre-approval
visits of sponsors and sites, as specified below, to assess the
applicant sponsor's or site's potential for successful Program
operations and to verify information provided in the application. The
State agency shall visit prior to approval:
(i) All applicant sponsors which did not participate in the program
in the prior year. However, if a sponsor is a school food authority, has
been reviewed by the State agency under the National School Lunch
Program during the preceding 12 months, and had no significant
deficiencies noted in that review, a pre-approval visit may be conducted
at the discretion of the State agency. In addition, pre-approval visits
of sponsors proposing to operate the Program during unanticipated school
closures during the period from October through April (or at any time
[[Page 145]]
of the year in an area with a continuous school calendar) may be
conducted at the discretion of the State agency;
(ii) All applicant sponsors which, as a result of operational
problems noted in the prior year, the State agency has determined need a
pre-approval visit; and
(iii) All sites which the State agency has determined need a pre-
approval visit.
(2) Sponsor and site reviews--(i) General. The State agency must
review sponsors and sites to ensure compliance with Program regulations,
the Department's non-discrimination regulations (7 CFR part 15) and any
other applicable instructions issued by the Department. In determining
which sponsors and sites to review, the State agency must, at a minimum,
consider the sponsors' and sites' previous participation in the Program,
their current and previous Program performance, and the results of
previous reviews of the sponsor and sites. When the same school food
authority personnel administer this Program as well as the National
School Lunch Program (7 CFR part 210), the State agency is not required
to conduct a review of the Program in the same year in which the
National School Lunch Program operations have been reviewed and
determined to be satisfactory. Reviews shall be conducted as follows:
(ii) Frequency and number of required reviews. State agencies shall:
(A) Conduct a review of every new sponsor at least once during the
first year of operation;
(B) Annually review a number of sponsors whose program
reimbursements, in the aggregate, accounted for at least one-half of the
total program meal reimbursements in the State in the prior year;
(C) Annually review every sponsor which experienced significant
operational problems in the prior year;
(D) Review each sponsor at least once every three years; and
(E) As part of each sponsor review, conduct reviews of at least 10
percent of each sponsor's sites, or one site, whichever number is
greater.
(3) Follow-up reviews. The State agency shall conduct follow-up
reviews of sponsors and sites as necessary.
(4) Monitoring system. Each State agency shall develop and implement
a monitoring system to ensure that sponsors, including site personnel,
and the sponsor's food service management company, if applicable,
immediately receive a copy of any review reports which indicate Program
violations and which could result in a Program disallowance.
(5) Records. Documentation of Program assistance and the results of
such assistance shall be maintained on file by the State agency.
(6) Food service management company facility visits. As a part of
the review of any vended sponsor which contracts for the preparation of
meals, the State agency shall inspect the food service management
company's facilities. Each State agency shall establish an order of
priority for visiting facilities at which food is prepared for the
Program. The State agency shall respond promptly to complaints
concerning facilities. If a food service management company fails to
correct violations noted by the State agency during a review, the State
agency shall notify the sponsor and the food service management company
that reimbursement shall not be paid for meals prepared by the food
service management company after a date specified in the notification.
Funds provided for in Sec. 225.5(f) may be used for conducting food
service management company facility inspections.
(7) Forms for reviews by sponsors. Each State agency shall develop
and provide monitor review forms to all approved sponsors. These forms
shall be completed by sponsor monitors. The monitor review form shall
include, but not be limited to, the time of the reviewer's arrival and
departure, the site supervisor's signature, a certification statement to
be signed by the monitor, the number of meals prepared or delivered, the
number of meals served to children, the deficiencies noted, the
corrective actions taken by the sponsor, and the date of such actions.
(8) Statistical monitoring. State agencies may use statistical
monitoring
[[Page 146]]
procedures in lieu of the site monitoring requirements prescribed in
paragraph (d)(2) of this section to accomplish the monitoring and
technical assistance aspects of the Program. State agencies which use
statistical monitoring procedures may use the findings in evaluating
claims for reimbursement. Statistical monitoring may be used for some or
all of a State's sponsors. Use of statistical monitoring does not
eliminate the requirements for reviewing sponsors as specified in
paragraph (d)(2) of this section.
(9) Corrective actions. Corrective actions which the State agency
may take when Program violations are observed during the conduct of a
review are discussed in Sec. 225.11. The State agency shall conduct
follow-up reviews as appropriate when corrective actions are required.
(e) Other facility inspections and meal quality tests. In addition
to those inspections required by paragraph (d)(6) of this section, the
State agency may also conduct, or arrange to have conducted: inspections
of self-preparation and vended sponsors' food preparation facilities;
inspections of food service sites; and meal quality tests. The
procedures for carrying out these inspections and tests shall be
consistent with procedures used by local health authorities. For
inspections of food service management companies' facilities not
conducted by State agency personnel, copies of the results shall be
provided to the State agency. The company and the sponsor shall also
immediately receive a copy of the results of these inspections when
corrective action is required. If a food service management company
fails to correct violations noted by the State agency during a review,
the State agency shall notify the sponsor and the food service
management company that reimbursement shall not be paid for meals
prepared by the food service management company after a date specified
in the notification. Funds provided for in Sec. 225.5(f) may be used
for conducting these inspections and tests.
(f) Financial management. Each State agency shall establish a
financial management system, in accordance with 7 CFR part 3015, and 7
CFR part 3016 or 7 CFR part 3019, as applicable, and FNS guidance, to
identify allowable Program costs and to establish standards for sponsor
recordkeeping and reporting. The State agency shall provide guidance on
these financial management standards to each sponsor.
(g) Nondiscrimination. (1) Each State agency shall comply with all
requirements of title VI of the Civil Rights Act of 1964, title IX of
the Education Amendments of 1972, section 504 of the Rehabilitation Act
of 1973, the Age Discrimination Act of 1975, and the Department's
regulations concerning nondiscrimination (7 CFR parts 15, 15a and 15b),
including requirements for racial and ethnic participation data
collection, public notification of the nondiscrimination policy, and
reviews to assure compliance with such policy, to the end that no person
shall, on the grounds of race, color, national origin, sex, age, or
handicap, be excluded from participation in, be denied the benefits of,
or be otherwise subjected to discrimination under, the Program.
(2) Complaints of discrimination filed by applicants or participants
shall be referred to FNS or the Secretary of Agriculture, Washington, DC
20250. A State agency which has an established grievance or complaint
handling procedure may resolve sex and handicap discrimination
complaints before referring a report to FNS.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13468, Apr. 10, 1990;
64 FR 72485, Dec. 28, 1999; 64 FR 72898, Dec. 29, 1999; 71 FR 39518,
July 13, 2006]
Sec. 225.8 Records and reports.
(a) Each State agency shall maintain complete and accurate current
accounting records of its Program operations which will adequately
identify funds authorizations, obligations, unobligated balances,
assets, liabilities, income, claims against sponsors and efforts to
recover overpayments, and expenditures for administrative and operating
costs. These records shall be retained for a period of three years after
the date of the submission of the final Program Operations and Financial
Status Report (SF-269), except that, if audit findings have not been
resolved, the affected records shall be retained beyond the three year
period until such time as any issues raised by the audit
[[Page 147]]
findings have been resolved. The State agency shall also retain a
complete record of each review or appeal conducted, as required under
Sec. 225.13, for a period of three years following the date of the
final determination on the review or appeal. Records may be kept in
their original form or on microfilm.
(b) Each State agency shall submit to FNS a final report on the
Summer Food Service Program Operations (FNS-418) for each month no more
than 90 days following the last day of the month covered by the report.
States shall not receive Program funds for any month for which the final
report is not postmarked and/or submitted within this time limit unless
FNS grants an exception. Upward adjustments to a State's report shall
not be made after 90 days from the month covered by the report unless
authorized by FNS. Downward adjustments shall always be made without FNS
authorization, regardless of when it is determined that such adjustments
need to be made. Adjustments to a State's report shall be reported to
FNS in accordance with procedures established by FNS. Each State agency
shall also submit to FNS a quarterly Financial Status Report (SF-269) on
the use of Program funds. Such reports shall be submitted no later than
30 days after the end of each fiscal year quarter. Obligations shall be
reported only for the fiscal year in which they occur. Action may be
taken against the State agency, in accordance with Sec. 225.5(a)(1),
for failure to submit accurate and timely reports.
(c) The State agency must submit to FNS a final Financial Status
Report no later than 120 days after the end of the fiscal year, on a
form (SF-269) provided by FNS. Any requested increase in reimbursement
levels for a fiscal year resulting from corrective action taken after
submission of the final Program Operations and Financial Status Reports
shall be submitted to FNS for approval. The request shall be accompanied
by a written explanation of the basis for the adjustment and the actions
taken to minimize the need for such adjustments in the future. If FNS
approves such an increase, it will make payment, subject to availability
of funds. Any reduction in reimbursement for that fiscal year resulting
from corrective action taken after submission of the final fiscal year
Program Operations and Financial Status Reports shall be handled in
accordance with the provisions of Sec. 225.12(d), except that amounts
recovered may not be used to make Program payments.
(d)(1) By May 1 of each year, State agencies must submit to the
appropriate FNSRO a list of potential private nonprofit organization
sponsors. The list must include the following information for each
applicant sponsor:
(i) Name and address;
(ii) Geographical area(s) proposed to be served;
(iii) Proposed number of sites; and
(iv) Any available details of each proposed site including address,
dates of operation, and estimated daily attendance.
(2) State agencies must also notify the appropriate FNSRO within 5
working days after they approve each private nonprofit organization to
participate as a SFSP sponsor. When State agencies notify the FNSRO of
sponsor approval, they must provide the following information:
(i) Any changes to site locations, dates of operation, and estimated
daily attendance that was previously provided;
(ii) The hours and type(s) of approved meal service at each site;
(iii) The type of site approval--open, restricted open, closed
enrolled, or camp; and
(iv) Any other important details about each site that would help the
FNSRO plan reviews, including whether the site is rural or urban, or
vended or self-preparation.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
64 FR 72485, Dec. 28, 1999; 65 FR 82251, Dec. 28, 2000]
Sec. 225.9 Program assistance to sponsors.
(a) Start-up payments. At their discretion, State agencies may make
start-up payments to sponsors which have executed Program agreements.
Start-up payments shall not be made more than two months before the
sponsor is scheduled to begin food service operations and shall not
exceed 20 percent of the sponsor's approved administrative budget. The
amount of the start-
[[Page 148]]
up payment shall be deducted from the first advance payment for
administrative costs or, if the sponsor does not receive advance
payments, from the first administrative reimbursement.
(b) Commodity assistance. (1) Sponsors eligible to receive
commodities under the Program include: Self-preparation sponsors;
sponsors which have entered into an agreement with a school or school
food authority for the preparation of meals; and sponsors which are
school food authorities and have competitively procured Program meals
from the same food service management company from which they
competitively procured meals for the National School Lunch Program
during the last period in which school was in session. The State agency
shall make available to these sponsors information on available
commodities. Sponsors shall use in the Program food donated by the
Department and accepted by sponsors.
(2) Not later than June 1 of each year, State agencies shall prepare
a list of the sponsors which are eligible to receive commodities and the
average daily number of eligible meals to be served by each of these
sponsors. If the State agency does not handle the distribution of
commodities donated by the Department, this list shall be forwarded to
the agency of the State responsible for the distribution of commodities.
The State agency shall be responsible for promptly revising the list to
reflect additions or terminations of sponsors and for adjusting the
average daily participation data as it deems necessary.
(c) Advance payments. At the sponsor's request, State agencies shall
make advance payments to sponsors which have executed Program agreements
in order to assist these sponsors in meeting operating costs and
administrative expenses. For sponsors operating under a continuous
school calendar, all advance payments shall be forwarded on the first
day of each month of operation. Advance payments shall be made by the
dates specified in paragraphs (c) (1) and (2) of this section for all
other sponsors whose requests are received at least 30 days prior to
those dates. Requests received less than 30 days prior to those dates
shall be acted upon within 30 days of receipt. When making advance
payments, State agencies shall observe the following criteria:
(1) Operating costs. (i) State agencies shall make advance payments
for operating costs by June 1, July 15, and August 15. Except for school
food authorities, sponsors must conduct training sessions before
receiving the second advance payment. Training sessions must cover
Program duties and responsibilities for the sponsor's staff and for site
personnel. A sponsor shall not receive advance operating cost payments
for any month in which it will participate in the Program for less than
ten days.
(ii) To determine the amount of the advance payment to any sponsor,
the State agency shall employ whichever of the following methods will
result in the larger payment:
(A) The total operating costs paid to the sponsor for the same
calendar month in the preceding year; or
(B) For vended sponsors, 50 percent of the amount determined by the
State agency to be needed that month for meals, and, for self-
preparation sponsors, 65 percent of the amount determined by the State
agency to be needed that month for meals.
(2) Administrative costs. (i) State agencies shall make advance
payments for administrative costs by June 1 and July 15. To be eligible
for the second advance payment, the sponsor must certify that it is
operating the number of sites for which the administrative budget was
approved and that its projected administrative costs do not differ
significantly from the approved budget. A sponsor shall not receive
advance administrative costs payments for any month in which it will
participate in the Program for less than 10 days. However, if a sponsor
operates for less than 10 days in June but for at least 10 days in
August, the second advance administrative costs payment shall be made by
August 15.
(ii) Each payment shall equal one-third of the total amount which
the State agency determines the sponsor will need to administer its
program. For sponsors which will operate for 10 or more days in only one
month and, therefore, will qualify for only one advance administrative
costs payment,
[[Page 149]]
the payment shall be no less than one-half, and no more than two-thirds,
of the total amount which the State agency determines the sponsor will
need to administer its program.
(3) Advance payment estimates. When determining the amount of
advance payments payable to the sponsor, the State agency shall make the
best possible estimate based on the sponsor's request and any other
available data. Under no circumstances may the amount of the advance
payment for operating or administrative costs exceed the amount
estimated by the State agency to be needed by the sponsor to meet
operating or administrative costs, respectively.
(4) Limit. The sum of the advance operating and administrative costs
payments to a sponsor for any one month shall not exceed $40,000 unless
the State agency determines that a larger payment is necessary for the
effective operation of the Program and the sponsor demonstrates
sufficient administrative and managerial capability to justify a larger
payment.
(5) Deductions from advance payments. The State agency shall deduct
from either advance operating payments or advance administrative
payments the amount of any previous payment which is under dispute or
which is part of a demand for recovery under Sec. 225.12.
(6) Withholding of advance payments. If the State agency has reason
to believe that a sponsor will not be able to submit a valid claim for
reimbursement covering the month for which advance payments have already
been made, the subsequent month's advance payment shall be withheld
until a valid claim is received.
(7) Repayment of excess advance payments. Upon demand of the State
agency, sponsors shall repay any advance Program payments in excess of
the amount cited on a valid claim for reimbursement.
(d) Reimbursements. Sponsors shall not be eligible for
reimbursements for operating and administrative costs unless they have
executed an agreement with the State agency. All reimbursements shall be
in accordance with the terms of this agreement. Reimbursements shall not
be paid for meals served at a site before the sponsor has received
written notification that the site has been approved for participation
in the Program. Income accruing to a sponsor's program shall be deducted
from combined operating and administrative costs. The State agency may
make full or partial reimbursement upon receipt of a claim for
reimbursement, but shall first make any necessary adjustments in the
amount to be paid. The following requirements shall be observed in
submitting and paying claims:
(1) School food authorities that operate the Program, and operate
more than one child nutrition program under a single State agency, must
use a common claim form (as provided by the State agency) for claiming
reimbursement for meals served under those programs.
(2) No reimbursement may be issued until the sponsor certifies that
it operated all sites for which it is approved and that there has been
no significant change in its projected administrative costs since its
preceding claim and, for a sponsor receiving an advance payment for only
one month, that there has been no significant change in its projected
administrative costs since its initial advance administrative costs
payment.
(3) Sponsors which operate less than 10 days in the final month of
operations shall submit a combined claim for the final month and the
immediate preceding month within 60 days of the last day of operation.
(4) The State agency shall forward reimbursements within 45 days of
receiving valid claims. If a claim is incomplete or invalid, the State
agency shall return the claim to the sponsor within 30 days with an
explanation of the reason for disapproval. If the sponsor submits a
revised claim, final action shall be completed within 45 days of
receipt.
(5) Claims for reimbursement shall report information in accordance
with the financial management system established by the State agency,
and in sufficient detail to justify the reimbursement claimed and to
enable the State agency to provide the Reports of Summer Food Service
Program Operations required under Sec. 225.8(b). In submitting a claim
for reimbursement, each sponsor shall certify that the
[[Page 150]]
claim is correct and that records are available to support this claim.
Failure to maintain such records may be grounds for denial of
reimbursement for meals served and/or administrative costs claimed
during the period covered by the records in question. The costs of meals
served to adults performing necessary food service labor may be included
in the claim. Under no circumstances may a sponsor claim the cost of any
disallowed meals as operating costs.
(6) A final Claim for Reimbursement shall be postmarked and/or
submitted to the State agency not later than 60 days after the last day
of the month covered by the claim. State agencies may establish shorter
deadlines at their discretion. Claims not filed within the 60 day
deadline shall not be paid with Program funds unless FNS determines that
an exception should be granted. The State agency shall promptly take
corrective action with respect to any Claim for Reimbursement as
determined necessary through its claim review process or otherwise. In
taking such corrective action, State agencies may make upward
adjustments in Program funds claimed on claims filed within the 60 day
deadline if such adjustments are completed within 90 days of the last
day of the month covered by the claim and are reflected in the final
Program Operations Report (FNS-418). Upward adjustments in Program funds
claimed which are not reflected in the final FNS-418 for the month
covered by the claim cannot be made unless authorized by FNS. Downward
adjustments in Program funds claimed shall always be made without FNS
authorization, regardless of when it is determined that such adjustments
are necessary.
(7) Payments to a sponsor for operating costs must equal the lesser
of the following totals:
(i) The actual operating costs incurred by the sponsor; or
(ii) The sum of the amounts derived by multiplying the number of
meals, by type, actually served under the sponsor's program to eligible
children by the current rates for each meal type, as adjusted in
accordance with paragraph (d)(9) of this section.
(8) Payments to a sponsor for administrative costs must equal the
lowest of the following totals:
(i) The amount estimated in the sponsor's approved administrative
budget (taking into account any amendments);
(ii) The actual administrative costs incurred by the sponsor; or
(iii) The sum of the amounts derived by multiplying the number of
meals, by type, actually served under the sponsor's program to eligible
children by the current administrative rates for each meal type, as
adjusted in accordance with paragraph (d)(9) of this section. Sponsors
must be eligible to receive additional administrative reimbursement for
each meal served to participating children at rural or self-preparation
sites, and the rates for such additional administrative reimbursement
must be adjusted in accordance with paragraph (d)(9) of this section.
(9) On each January 1, or as soon thereafter or as practicable, FNS
will publish a notice in the Federal Register announcing any adjustment
to the reimbursement rates described in paragraphs (d)(7)(ii) and
(d)(8)(iii) of this section. Adjustments will be based upon changes in
the series for food away from home of the Consumer Price Index(CPI) for
all urban consumers since the establishment of the rates. Higher rates
will be established for Alaska and Hawaii, based on the CPI for those
States.
(10) Sponsors of camps shall be reimbursed only for meals served to
children in camps whose eligibility for Program meals is documented.
Sponsors of NYSP sites shall only claim reimbursement for meals served
to children enrolled in the NYSP.
(11) If a State agency has reason to believe that a sponsor or food
service management company has engaged in unlawful acts in connection
with Program operations, evidence found in audits, reviews, or
investigations shall be a basis for nonpayment of the applicable
sponsor's claims for reimbursement.
(e) The sponsor may claim reimbursement for any meals which are
examined for meal quality by the State
[[Page 151]]
agency, auditors, or local health authorities and found to meet the meal
pattern requirements.
(f) The sponsor shall not claim reimbursement for meals served to
children at any site in excess of the site's approved level of meal
service, if one has been established under Sec. 225.6(d)(2). However,
the total number of meals for which operating costs are claimed may
exceed the approved level of meal service if the meals exceeding this
level were served to adults performing necessary food service labor in
accordance with paragraph (d)(5) of this section. In reviewing a
sponsor's claim, the State agency shall ensure that reimbursements for
second meals are limited to the percentage tolerance established in
Sec. 225.15(b)(4).
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
64 FR 72485, Dec. 28, 1999]
Sec. 225.10 Audits and management evaluations.
(a) Audits. State agencies shall arrange for audits of their own
operations to be conducted in accordance with the Department's Uniform
Federal Assistance Regulations (7 CFR part 3015). Unless otherwise
exempt, sponsors shall arrange for audits to be conducted in accordance
with 7 CFR part 3015. State agencies shall provide OIG with full
opportunity to audit the State agency and sponsors. Unless otherwise
exempt, audits at the State and sponsor levels shall be conducted in
accordance with OMB Circular A-133 and the Department's implementing
regulations at 7 CFR part 3052. (To obtain the OMB circular referenced
in this paragraph, see 5 CFR 1310.3.) While OIG shall rely to the
fullest extent feasible upon State-sponsored audits of sponsors, it
shall, when considered necessary, (1) make audits on a State-wide basis,
(2) perform on-site test audits, and (3) review audit reports and
related working papers of audits performed by or for State agencies.
(b) Management evaluations. (1) State agencies shall provide FNS
with full opportunity to conduct management evaluations (including
visits to sponsors) of all operations of the State agency. Each State
agency shall make available its records, including records of the
receipts and expenditures of funds, upon a reasonable request by FNS.
(2) The State agency shall fully respond to any recommendations made
by FNSRO pursuant to the management evaluation.
(3) FNSRO may require the State agency to submit on 20 days notice a
corrective action plan regarding serious problems observed during any
phase of the management evaluation.
(c) Disregards. In conducting management evaluations or audits for
any fiscal year, the State agency, FNS or OIG may disregard overpayment
which does not exceed $100 or, in the case of State agency administered
programs, does not exceed the amount established by State law,
regulations or procedures as a minimum for which claims will be made for
State losses generally. No overpayment shall be disregarded, however,
when there are unpaid claims for the same fiscal year from which the
overpayment can be deducted or when there is substantial evidence of
violation of criminal law or civil fraud statutes.
[54 FR 18208, Apr. 27, 1989, as amended at 71 FR 39518, July 13, 2006]
Sec. 225.11 Corrective action procedures.
(a) Purpose. The provisions in this section shall be used by the
State agency to improve Program performance.
(b) Investigations. Each State agency shall promptly investigate
complaints received or irregularities noted in connection with the
operation of the Program, and shall take appropriate action to correct
any irregularities. The State agency shall maintain on file all evidence
relating to such investigations and actions. The State agency shall
inform the appropriate FNSRO of any suspected fraud or criminal abuse in
the Program which would result in a loss or misuse of Federal funds. The
Department may make investigations at the request of the State agency,
or where the Department determines investigations are appropriate.
(c) Denial of applications and termination of sponsors. Except as
specified below, the State agency shall not enter into an agreement with
any applicant
[[Page 152]]
sponsor identifiable through its corporate organization, officers,
employees, or otherwise, as an institution which participated in any
Federal child nutrition program and was seriously deficient in its
operation of any such program. The State agency shall terminate the
Program agreement with any sponsor which it determines to be seriously
deficient. However, the State agency shall afford a sponsor reasonable
opportunity to correct problems before terminating the sponsor for being
seriously deficient. The State agency may approve the application of a
sponsor which has been disapproved or terminated in prior years in
accordance with this paragraph if the sponsor demonstrates to the
satisfaction of the State agency that the sponsor has taken appropriate
corrective actions to prevent recurrence of the deficiencies. Serious
deficiencies which are grounds for disapproval of applications and for
termination include, but are not limited to, any of the following:
(1) Noncompliance with the applicable bid procedures and contract
requirements of Federal child nutrition program regulations;
(2) The submission of false information to the State agency;
(3) Failure to return to the State agency any start-up or advance
payments which exceeded the amount earned for serving meals in
accordance with this part, or failure to submit all claims for
reimbursement in any prior year, provided that failure to return any
advance payments for months for which claims for reimbursement are under
dispute from any prior year shall not be grounds for disapproval in
accordance with this paragraph; and
(4) Program violations at a significant proportion of the sponsor's
sites. Such violations include, but are not limited to, the following:
(i) Noncompliance with the meal service time restrictions set forth
at Sec. 225.16(c);
(ii) Failure to maintain adequate records;
(iii) Failure to adjust meal orders to conform to variations in the
number of participating children;
(iv) The simultaneous service of more than one meal to any child;
(v) The claiming of Program payments for meals not served to
participating children;
(vi) Service of a significant number of meals which did not include
required quantities of all meal components;
(vii) Excessive instances of off-site meal consumption;
(viii) Continued use of food service management companies that are
in violation of health codes.
(d) Meal service restriction. With the exception for residential
camps set forth at Sec. 225.16(b)(1)(ii), the State agency shall
restrict to one meal service per day:
(1) Any food service site which is determined to be in violation of
the time restrictions for meal service set forth at Sec. 225.16(c) when
corrective action is not taken within a reasonable time as determined by
the State agency; and
(2) All sites under a sponsor if more than 20 percent of the
sponsor's sites are determined to be in violation of the time
restrictions set forth at Sec. 225.16(c).
If this action results in children not receiving meals under the
Program, the State agency shall make reasonable effort to locate another
source of meal service for these children.
(e) Meal disallowances. (1) If the State agency determines that a
sponsor has failed to plan, prepare, or order meals with the objective
of providing only one meal per child at each meal service at a site, the
State agency shall disallow the number of children's meals prepared or
ordered in excess of the number of children served.
(2) If the State agency observes meal service violations during the
conduct of a site review, the State agency shall disallow as meals
served to children all of the meals observed to be in violation.
(3) The State agency shall also disallow children's meals which are
in excess of a site's approved level established under Sec.
225.6(d)(2).
(f) Corrective action and termination of sites. (1) Whenever the
State agency observes violations during the course of a site review, it
shall require the sponsor to take corrective action. If the State agency
finds a high level of meal service violations, the State agency shall
require a specific immediate corrective
[[Page 153]]
action plan to be followed by the sponsor and shall either conduct a
follow-up visit or in some other manner verify that the specified
corrective action has been taken.
(2) The State agency shall terminate the participation of a
sponsor's site if the sponsor fails to take action to correct the
Program violations noted in a State agency review report within the
timeframes established by the corrective action plan.
(3) The State agency shall immediately terminate the participation
of a sponsor's site if during a review it determines that the health or
safety of the participating children is imminently threatened.
(4) If the site is vended, the State agency shall within 48 hours
notify the food service management company providing meals to the site
of the site's termination.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990]
Sec. 225.12 Claims against sponsors.
(a) The State agency shall disallow any portion of a claim for
reimbursement and recover any payment to a sponsor not properly payable
under this part, except as provided for in Sec. 225.10(c). State
agencies may consider claims for reimbursement not properly payable if a
sponsor's records do not justify all costs and meals claimed. However,
the State agency shall notify the sponsor of the reasons for any
disallowance or demand for repayment.
(b) Minimum State agency collection procedures for unearned payments
shall include:
(1) Written demand to the sponsor for the return of improper
payments;
(2) If after 30 calendar days the sponsor fails to remit full
payment or agree to a satisfactory repayment schedule, a second written
demand for the return of improper payments, sent by certified mail,
return receipt requested;
(3) If after 60 calendar days following the original written demand,
the sponsor fails to remit full payment or agree to a satisfactory
repayment schedule, a third written demand for the return of improper
payments, sent by certified mail, return receipt requested;
(4) If after 90 calendar days following the original written demand,
the sponsor fails to remit full payment or agree to a satisfactory
repayment schedule, the State agency shall refer the claim against the
sponsor to the appropriate State or Federal authorities for pursuit of
legal remedies.
(c) If FNS does not concur with the State agency's action in paying
a sponsor or in failing to collect an overpayment, FNS shall notify the
State agency of its intention to assert a claim against the State
agency. In all such cases, the State agency shall have full opportunity
to submit evidence concerning the action taken. The State agency shall
be liable to FNS for failure to collect an overpayment unless FNS
determines that the State agency has conformed with this part in issuing
the payment and has exerted reasonable efforts in accordance with
paragraph (b) of this section to recover the improper payment.
(d) The amounts recovered by the State agency from sponsors may be
utilized to make Program payments to sponsors for the period for which
the funds were initially available and/or to repay the State for any of
its own funds used to make payments on claims for reimbursement. Any
amounts recovered which are not so utilized shall be returned to FNS in
accordance with the requirements of this part.
Sec. 225.13 Appeal procedures.
(a) Each State agency shall establish a procedure to be followed by
an applicant appealing: A denial of an application for participation; a
denial of a sponsor's request for an advance payment; a denial of a
sponsor's claim for reimbursement (except for late submission under
Sec. 225.9(d)(5)); a State agency's refusal to forward to FNS an
exception request by the sponsor for payment of a late claim or a
request for an upward adjustment to a claim; a claim against a sponsor
for remittance of a payment; the termination of the sponsor or a site; a
denial of a sponsor's application for a site; a denial of a food service
management company's application for registration, if applicable; or the
revocation of a food service management company's registration, if
applicable. Appeals shall not be allowed on decisions made by FNS with
respect
[[Page 154]]
to late claims or upward adjustments under Sec. 225.9(d)(5).
(b) At a minimum, appeal procedures shall provide that:
(1) The sponsor or food service management company be advised in
writing of the grounds upon which the State agency based the action. The
notice of action, which shall be sent by certified mail, return receipt
requested, shall also state that the sponsor or food service management
company has the right to appeal the State's action;
(2) The sponsor or food service management company be advised in
writing that the appeal must be made within a specified time and must
meet the requirements of paragraph (b)(4) of this section. The State
agency shall establish this period of time at not less than one week nor
more than two weeks from the date on which the notice of action is
received;
(3) The appellant be allowed the opportunity to review any
information upon which the action was based;
(4) The appellant be allowed to refute the charges contained in the
notice of action either in person or by filing written documentation
with the review official. To be considered, written documentation must
be submitted by the appellant within seven days of submitting the
appeal, must clearly identify the State agency action being appealed,
and must include a photocopy of the notice of action issued by the State
agency;
(5) A hearing be held by the review official in addition to, or in
lieu of, a review of written information submitted by the appellant only
if the appellant so specifies in the letter appealing the action. The
appellant may retain legal counsel or may be represented by another
person. Failure of the appellant's representative to appear at a
scheduled hearing shall constitute the appellant's waiver of the right
to a personal appearance before the review official, unless the review
official agrees to reschedule the hearing. A representative of the State
agency shall be allowed to attend the hearing to respond to the
appellant's testimony and written information and to answer questions
from the review official;
(6) If the appellant has requested a hearing, the appellant and the
State agency shall be provided with at least 5 days advance written
notice, sent by certified mail, return receipt requested, of the time
and place of the hearing;
(7) The hearing be held within 14 days of the date of the receipt of
the request for review, but, where applicable, not before the
appellant's written documentation is received in accordance with
paragraphs (b) (4) and (5) of this section;
(8) The review official be independent of the original decision-
making process;
(9) The review official make a determination based on information
provided by the State agency and the appellant, and on Program
regulations;
(10) Within 5 working days after the appellant's hearing, or within
5 working days after receipt of written documentation if no hearing is
held, the reviewing official make a determination based on a full review
of the administrative record and inform the appellant of the
determination of the review by certified mail, return receipt requested;
(11) The State agency's action remain in effect during the appeal
process. However, participating sponsors and sites may continue to
operate the Program during an appeal of termination, and if the appeal
results in overturning the State agency's decision, reimbursement shall
be paid for meals served during the appeal process. However, such
continued Program operation shall not be allowed if the State agency's
action is based on imminent dangers to the health or welfare of
children. If the sponsor or site has been terminated for this reason,
the State agency shall so specify in its notice of action; and
(12) The determination by the State review official is the final
administrative determination to be afforded to the appellant.
(c) The State agency shall send written notification of the complete
appeal procedures and of the actions which are appealable, as specified
in paragraph (a) of this section, to each potential sponsor applying to
participate and to
[[Page 155]]
each food service management company applying to register in accordance
with Sec. 225.6(g).
(d) A record regarding each review shall be kept by the State
agency, as required under Sec. 225.8(a). The record shall document the
State agency's compliance with these regulations and shall include the
basis for its decision.
[54 FR 18208, Apr. 27, 1989, as amended at 64 FR 72486, Dec. 28, 1999]
Subpart C_Sponsor and Site Provisions
Sec. 225.14 Requirements for sponsor participation.
(a) Applications. Sponsors shall make written application to the
State agency to participate in the Program. Such application shall be
made on a timely basis in accordance with the requirements of Sec.
225.6(b)(1). Sponsors proposing to operate a site during an
unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar) may be exempt, at the discretion of the State agency, from
submitting a new application if they have participated in the program at
any time during the current year or in either of the prior two calendar
years.
(b) Sponsor eligibility. Applicants eligible to sponsor the Program
include:
(1) Public or nonprofit private school food authorities;
(2) Public or nonprofit private residential summer camps;
(3) Units of local, municipal, county, or State governments;
(4) Public or private nonprofit colleges or universities which are
currently participating in the National Youth Sports Program; and
(5) Private nonprofit organizations as defined in Sec. 225.2.
(c) General requirements. No applicant sponsor shall be eligible to
participate in the Program unless it:
(1) Demonstrates financial and administrative capability for Program
operations and accepts final financial and administrative responsibility
for total Program operations at all sites at which it proposes to
conduct a food service;
(2) Has not been seriously deficient in operating the Program;
(3) Will conduct a regularly scheduled food service for children
from areas in which poor economic conditions exist, or qualifies as a
camp;
(4) Has adequate supervisory and operational personnel for overall
monitoring and management of each site, including adequate personnel to
conduct the visits and reviews required in Sec. Sec. 225.15(d) (2) and
(3);
(5) Provides an ongoing year-round service to the community which it
proposes to serve under the Program, except as provided for in Sec.
225.6(b)(4);
(6) Certifies that all sites have been visited and have the
capability and the facilities to provide the meal service planned for
the number of children anticipated to be served; and
(7) Enters into a written agreement with the State agency upon
approval of its application, as required in Sec. 225.6(e).
(d) Requirements specific to sponsor types. (1) If the sponsor is a
camp, it must certify that it will collect information on participants'
eligibility to support its claim for reimbursement.
(2) If the sponsor administers the Program at sites that provide
summer school sessions, it must ensure that these sites are open to
children enrolled in summer school and to all children residing in the
area served by the site.
(3) Sponsors which are units of local, municipal, county or State
government, and sponsors which are private nonprofit organizations, will
only be approved to administer the Program at sites where they have
direct operational control. Operational control means that the sponsor
shall be responsible for:
(i) Managing site staff, including the hiring, terminating, and
determining conditions of employment for site staff; and
(ii) Exercising management control over Program operations at sites
throughout the period of Program participation by performing the
functions specified in Sec. 225.15.
(4) If the sponsor administers homeless feeding sites, it must:
(i) Document that the site is not a residential child-care
institution as defined in paragraph (c) of the definition
[[Page 156]]
of 'School' contained in Sec. 210.2 of this chapter;
(ii) Document that the primary purpose of the homeless feeding site
is to provide shelter and meals to homeless families; and
(iii) Certify that these sites employ meal counting methods to
ensure that reimbursement is claimed only for meals served to homeless
and non-homeless children.
(5) If the sponsor administers NYSP sites, it must ensure that all
children at these sites are enrolled participants in the NYSP.
(6) If the sponsor is a private nonprofit organization, it must
certify that it:
(i) Administers the Program:
(A) At no more than 25 sites, with not more than 300 children being
served at any approved meal service at any one site, or
(B) With a waiver granted by the State agency in accordance with
Sec. 225.6(b)(6)(ii), not more than 500 children being served at any
approved meal service at any one site;
(ii) Operates in areas where a school food authority has not
indicated that it will operate the Program in the current year;
(iii) Exercises full control and authority over the operation of the
Program at all sites under its sponsorship;
(iv) Provides ongoing year-round activities for children or
families;
(v) Demonstrates that it possesses adequate management and the
fiscal capacity to operate the Program; and
(vi) Meets applicable State and local health, safety, and sanitation
standards.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
64 FR 72486, Dec. 28, 1999; 64 FR 72898, Dec. 29, 1999; 65 FR 50128,
Aug. 17, 2000]
Sec. 225.15 Management responsibilities of sponsors.
(a) General. (1) Sponsors shall operate the food service in
accordance with: the provisions of this part; any instructions and
handbooks issued by FNS under this part; and any instructions and
handbooks issued by the State agency which are not inconsistent with the
provisions of this part.
(2) Sponsors shall not claim reimbursement under parts 210, 215,
220, or 226 of this chapter. In addition, the sponsor must ensure that
records of any site serving homeless children accurately reflect
commodity allotments received as a ``charitable institution'', as
defined in Sec. Sec. 250.3 and 250.41 of this chapter. Commodities
received for Program meals must be based only on the number of eligible
children's meals served. Sponsors may use funds from other Federally-
funded programs to supplement their meal service but must, in
calculating their claim for reimbursement, deduct such funds from total
operating and administrative costs in accordance with the definition of
``income accruing to the Program'' at Sec. 225.2 and with the
regulations at Sec. 225.9(d). Sponsors which are school food
authorities may use facilities, equipment and personnel supported by
funds provided under this part to support a nonprofit nutrition program
for the elderly, including a program funded under the Older Americans
Act of 1965 (42 U.S.C. 3001 et seq.).
(3) No sponsor may contract out for the management responsibilities
of the Program described in this section.
(b) Meal Ordering. (1) Each sponsor shall, to the maximum extent
feasible, utilize either its own food service facilities or obtain meals
from a school food service facility. If the sponsor obtains meals from a
school food service facility, the applicable requirements of this part
shall be embodied in a written agreement between the sponsor and the
school.
(2) Upon approval of its application or any adjustment in the
approved levels of meal service for its sites established under Sec.
225.6(d)(2), vended sponsors shall inform their food service management
company of the approved level at each site for which the food service
management company will provide meals.
(3) Sponsors shall plan for and prepare or order meals on the basis
of participation trends with the objective of providing only one meal
per child at each meal service. The sponsor shall make the adjustments
necessary to achieve this objective using the results from its
monitoring of sites. For sites
[[Page 157]]
for which approved levels of meal service have been established in
accordance with Sec. 225.6(d)(2), the sponsor shall adjust the number
of meals ordered or prepared with the objective of providing only one
meal per child whenever the number of children attending the site is
below the approved level. The sponsor shall not order or prepare meals
for children at any site in excess of the site's approved level, but may
order or prepare meals above the approved level if the meals are to be
served to adults performing necessary food service labor in accordance
with Sec. 225.9(d)(4). Records of participation and of preparation or
ordering of meals shall be maintained to demonstrate positive action
toward meeting this objective.
(4) In recognition of the fluctuation in participation levels which
makes it difficult to estimate precisely the number of meals needed and
to reduce the resultant waste, sponsors may claim reimbursement for a
number of second meals which does not exceed two percent of the number
of first meals served to children for each meal type (i.e., breakfasts,
lunches, supplements, or suppers) during the claiming period. The State
agency shall disallow all claims for second meals if it determines that
the sponsor failed to plan and prepare or order meals with the objective
of providing only one meal per child at each meal service. Second meals
shall be served only after all participating children at the site's meal
service have been served a meal.
(c) Records and claims. (1) Sponsors shall maintain accurate records
which justify all costs and meals claimed. Failure to maintain such
records may be grounds for denial of reimbursement for meals served and/
or administrative costs claimed during the period covered by the records
in question. The sponsor's records shall be available at all times for
inspection and audit by representatives of the Secretary, the
Comptroller General of the United States, and the State agency for a
period of three years following the date of submission of the final
claim for reimbursement for the fiscal year.
(2) Sponsors shall submit claims for reimbursement in accordance
with this part. All final claims must be submitted to the State agency
within 60 days following the last day of the month covered by the claim.
(d) Training and monitoring. (1) Each sponsor shall hold Program
training sessions for its administrative and site personnel and shall
allow no site to operate until personnel have attended at least one of
these training sessions. The State agency may waive these training
requirements for operation of the Program during unanticipated school
closures during the period from October through April (or at any time of
the year in an area with a continuous school calendar). Training of site
personnel shall, at a minimum, include: the purpose of the Program; site
eligibility; recordkeeping; site operations; meal pattern requirements;
and the duties of a monitor. Each sponsor shall ensure that its
administrative personnel attend State agency training provided to
sponsors, and sponsors shall provide training throughout the summer to
ensure that administrative personnel are thoroughly knowledgeable in all
required areas of Program administration and operation and are provided
with sufficient information to enable them to carry out their Program
responsibilities. Each site shall have present at each meal service at
least one person who has received this training.
(2) Sponsors shall visit each of their sites at least once during
the first week of operation under the Program and shall promptly take
such actions as are necessary to correct any deficiencies.
(3) Sponsors shall review food service operations at each site at
least once during the first four weeks of Program operations, and
thereafter shall maintain a reasonable level of site monitoring.
Sponsors shall complete a monitoring form developed by the State agency
during the conduct of these reviews.
(e) Media Release. Each sponsor shall annually announce in the media
serving the area from which it draws its attendance the availability of
free meals. Camps and other programs not eligible under Sec. 225.2
(paragraph (a) of ``areas in which poor economic conditions exist'')
shall annually announce to all participants the availability of free
meals for
[[Page 158]]
eligible children. All media releases issued by camps and other programs
not eligible under Sec. 225.2 (paragraph (a) of ``areas in which poor
economic conditions exist'') shall include: the Secretary's family-size
and income standards for reduced price school meals labelled ``SFSP
Income Eligibility Standards''; a statement that children who are
members of households receiving food stamp, FDPIR, or TANF benefits are
automatically eligible to receive free meal benefits at eligible program
sites; and a statement that meals are available without regard to race,
color, national origin, sex, age, or handicap.
(f) Application for free Program meals.--(1) Purpose of application
form. The application is used to determine the eligibility of children
attending camps and the eligibility of sites that are not open sites as
defined in paragraph (a) of the definition of ``areas in which poor
economic conditions exist'', in Sec. 225.2. In these situations,
parents or guardians of children enrolled in camps or these other sites
must be given application forms to provide information described in
paragraph (f)(2) or (f)(3) of this section, as applicable. Applications
are not necessary if other information sources are available and can be
used to determine eligibility of individual children in camps or sites.
(2) Application procedures based on household income. The household
member completing the application on behalf of the child enrolled in the
Program must provide the following information:
(i) The names of all children for whom application is made;
(ii) The names of all other household members;
(iii) The social security number of the adult household member who
signs the application or an indication that the household member does
not have a social security number;
(iv) The income received by each household member identified by
source of income;
(v) The signature of an adult household member;
(vi) The date the application is completed and signed.
(3) Application based on the household's receipt of food stamp,
FDPIR, or TANF benefits. Households may apply on the basis of receipt of
food stamp, FDPIR, or TANF benefits by providing the following
information:
(i) The name(s) and food stamp, FDPIR, or TANF case number(s) of the
child(ren) who are enrolled in the Program; and
(ii) The signature of an adult household member.
(4) Information or notices required on application forms.
Application forms or descriptive materials given to households about
applying for free meals must contain the following information:
(i) The family-size and income levels for reduced price school meal
eligibility with an explanation that households with incomes less than
or equal to these values are eligible for free Program meals (Note: The
income levels for free school meal eligibility must not be included on
the application or in other materials given to the household).
(ii) A statement that a child who is a member of a household that
receives food stamp, FDPIR, or TANF benefits is automatically eligible
to receive free meals in the Program;
(iii) A statement that reads, ``In certain cases, foster children
are eligible for free meals regardless of household income. If such
children are living with you and you wish to apply for such meals,
please contact us.'';
(iv) A Privacy Act notice informing households of how the social
security number and other information provided on the application will
be used. Each free and reduced price meal application must include
substantially the following statement, ``The Richard B. Russell National
School Lunch Act requires the information on this application. You do
not have to give the information, but if you do not, we cannot approve
your child for free or reduced price meals. You must include the social
security number of the adult household member who signs the application.
The social security number is not required when you apply on behalf of a
foster child or you list a Food Stamp, Temporary Assistance for Needy
Families (TANF) Program or Food Distribution Program on Indian
Reservations (FDPIR) case number for
[[Page 159]]
your child or other (FDPIR) identifier or when you indicate that the
adult household member signing the application does not have a social
security number. We will use your information to determine if your child
is eligible for free or reduced price meals, and for administration and
enforcement of the Program.'' When the State agency or sponsor, as
appropriate, plans to use or disclose children's eligibility information
for non-program purposes, additional information, as specified in
paragraph (i) of this section, must be added to the Privacy Act notice/
statement. State agencies and sponsors are responsible for drafting the
appropriate notice and ensuring that the notice complies with section
7(b) of the Privacy Act of 1974 (5 U.S.C. 552a note (Disclosure of
Social Security Number)).
(v) The statement used to inform the household about the use of
social security numbers must comply with the Privacy Act of 1974 (Pub.
L. 93-579). If a State or local agency plans to use the social security
numbers for uses not described in paragraph (f)(4)(iv) of this section,
the notice must be revised to explain those uses.
(vi) Examples of income that should be provided on the application,
including: Earnings, wages, welfare benefits, pensions, support
payments, unemployment compensation, social security, and other cash
income;
(vii) A notice placed immediately above the signature block stating
that the person signing the application certifies that all information
provided is correct, that the household is applying for Federal benefits
in the form of free Program meals, that Program officials may verify the
information on the application, and that purposely providing untrue or
misleading statements may result in prosecution under State or Federal
criminal laws; and
(viii) A statement that if food stamp, FDPIR, or TANF case numbers
are provided, they may be used to verify the current food stamp, FDPIR,
or TANF certification for the children for whom free meals benefits are
claimed.
(5) Verifying information on Program applications. Households
selected to verify information on their Program applications must be
notified in writing. State agencies must ensure that the notice of
information about the use of social security numbers provided on
applications complies with section 7 of Pub. L. 93-579 (Privacy Act of
1974). Households must be informed of the following:
(i) They must provide a social security number for each adult
household member, or indicate that an adult household member does not
have a social security number, or provide proof that they are receiving
food stamp, FDPIR, or TANF benefits;
(ii) They will lose Program benefits or be terminated from
participation if they do not cooperate with the verification process;
(iii) Social security numbers may be used to determine the
correctness of information on applications and continued eligibility for
Program benefits;
(iv) They will be given the name and phone number of an official who
can assist in the verification process;
(v) Verification may occur during program reviews, audits, and
investigations;
(vi) Verification may include contacting employers, food stamp or
welfare offices, or State employment offices to determine the accuracy
of statements on the application about income, receipt of food stamp,
FDPIR, TANF, or unemployment benefits; and
(vii) They may lose benefits or face claims or legal action if
incorrect information is reported on the application.
(g) Disclosure of children's free and reduced price meal eligibility
information to certain programs and individuals without parental
consent. The State agency or sponsor, as appropriate, may disclose
aggregate information about children eligible for free and reduced price
meals to any party without parental notification and consent when
children cannot be identified through release of the aggregate data or
by means of deduction. Additionally, the State agency or sponsor may
disclose information that identifies children eligible for free and
reduced price meals to the programs and the individuals specified in
this paragraph (g) without parent/guardian consent. The State agency or
[[Page 160]]
sponsor that makes the free and reduced price meal eligibility
determination is responsible for deciding whether to disclose program
eligibility information.
(1) Persons authorized to receive eligibility information. Only
persons directly connected with the administration or enforcement of a
program or activity listed in paragraphs (g)(2) or (g)(3) of this
section may have access to children's free and reduced price meal
eligibility information, without parental consent. Persons considered
directly connected with administration or enforcement of a program or
activity listed in paragraphs (g)(2) or (g)(3) of this section are
Federal, State, or local program operators responsible for the ongoing
operation of the program or activity or persons responsible for program
compliance. Program operators may include persons responsible for
carrying out program requirements and monitoring, reviewing, auditing,
or investigating the program. Program operators may include contractors,
to the extent those persons have a need to know the information for
program administration or enforcement. Contractors may include
evaluators, auditors, and others with whom Federal or State agencies and
program operators contract with to assist in the administration or
enforcement of their program in their behalf.
(2) Disclosure of children's names and free or reduced price meal
eligibility status. The State agency or sponsor, as appropriate, may
disclose, without parental consent, only children's names and
eligibility status (whether they are eligible for free meals or reduced
price meals) to persons directly connected with the administration or
enforcement of:
(i) A Federal education program;
(ii) A State health program or State education program administered
by the State or local education agency;
(iii) A Federal, State, or local means-tested nutrition program with
eligibility standards comparable to the National School Lunch Program
(i.e., food assistance programs for households with incomes at or below
185 percent of the Federal poverty level); or
(3) Disclosure of all eligibility information. In addition to
children's names and eligibility status, the State agency or sponsor, as
appropriate, may disclose, without parental consent, all eligibility
information obtained through the free and reduced price meal eligibility
process (including all information on the application or obtained
through direct certification) to:
(i) Persons directly connected with the administration or
enforcement of programs authorized under the Richard B. Russell National
School Lunch Act or the Child Nutrition Act of 1966. This means that all
eligibility information obtained for the Summer Food Service Program may
be disclosed to persons directly connected with administering or
enforcing regulations under the National School Lunch Program, Special
Milk Program, School Breakfast Program, Child and Adult Care Food
Program, and the Special Supplemental Nutrition Program for Women,
Infants and Children (WIC) (parts 210, 215, 220, 226 and 246,
respectively, of this chapter);
(ii) The Comptroller General of the United States for purposes of
audit and examination; and
(iii) Federal, State, and local law enforcement officials for the
purpose of investigating any alleged violation of the programs listed in
paragraphs (g)(2) and (g)(3) of this section.
(4) Use of free and reduced price meals eligibility information by
programs other than Medicaid or the State Children's Health Insurance
Program (SCHIP). State agencies and sponsors may use children's free and
reduced price meal eligibility information for administering or
enforcing the Summer Food Service Program. Additionally, any other
Federal, State, or local agency charged with administering or enforcing
the Summer Food Service Program may use the information for that
purpose. Individuals and programs to which children's free or reduced
price meal eligibility information has been disclosed under this section
may use the information only in the administration or enforcement of the
receiving program. No further disclosure of the information may be made.
(h) Disclosure of children's free or reduced price meal eligibility
information to Medicaid and/or SCHIP, unless parents decline. Children's
free or reduced price
[[Page 161]]
meal eligibility information only may be disclosed to Medicaid or SCHIP
when both the State agency and the sponsor so elect, the parental/
guardian does not decline to have their eligibility information
disclosed and the other provisions described in paragraph (h)(1) of this
section are met. The State agency or sponsor, as appropriate, may
disclose children's names, eligibility status (whether they are eligible
for free or reduced price meals), and any other eligibility information
obtained through the free and reduced price meal applications or
obtained through direct certification to persons directly connected with
the administration of Medicaid or SCHIP. Persons directly connected to
the administration of Medicaid and SCHIP are State employees and persons
authorized under Federal and State Medicaid and SCHIP requirements to
carry out initial processing of Medicaid or SCHIP applications or to
make eligibility determinations for Medicaid or SCHIP.
(1) The State agency must ensure that:
(i) The sponsors and health insurance program officials have a
written agreement that requires the health insurance program agency to
use the eligibility information to seek to enroll children in Medicaid
and SCHIP; and
(ii) Parents/guardians are notified that their eligibility
information may be disclosed to Medicaid or SCHIP and given an
opportunity to decline to have their children's eligibility information
disclosed, prior to any disclosure.
(2) Use of children's free and reduced price meal eligibility
information by Medicaid/SCHIP. Medicaid and SCHIP agencies and health
insurance program operators receiving children's free and reduced price
meal eligibility information must use the information to seek to enroll
children in Medicaid or SCHIP. The Medicaid and SCHIP enrollment process
may include targeting and identifying children from low-income
households who are potentially eligible for Medicaid or SCHIP for the
purpose of seeking to enroll them in Medicaid or SCHIP. No further
disclosure of the information may be made. Medicaid and SCHIP agencies
and health insurance program operators also may verify children's
eligibility in a program under the Child Nutrition Act of 1966 or the
Richard B. Russell National School Lunch Act.
(i) Notifying households of potential uses and disclosures of
children's free and reduced price meal eligibility information.
Households must be informed that the information they provide on the
free and reduced price meal application will be used to determine
eligibility for free or reduced price meals and that their eligibility
information may be disclosed to other programs.
(1) For disclosures to programs, other than Medicaid or the State
Children's Health Insurance Program (SCHIP), that are permitted access
to children's eligibility information, without parental/guardian
consent, the State agency or sponsor, as appropriate, must notify
parents/guardians at the time of application that their children's free
or reduced price meal eligibility information may be disclosed. The
State agency or sponsor, as appropriate, must add substantially the
following statement to the Privacy Act notice/statement required under
paragraph (f)(4)(iv) of this section, ``We may share your eligibility
information with education, health, and nutrition programs to help them
evaluate, fund, or determine benefits for their programs; auditors for
program reviews; and law enforcement officials to help them look into
violations of program rules.'' For children determined eligible for free
meals through the direct certification, the notice of potential
disclosure may be included in the document informing parents/guardians
of their children's eligibility for free meals through direct
certification.
(2) For disclosure to Medicaid or SCHIP, the State agency or
sponsor, as appropriate, must notify parents/guardians that their
children's free or reduced price meal eligibility information will be
disclosed to Medicaid and/or SCHIP unless the parent/guardian elects not
to have their information disclosed and notifies the State agency or
sponsor, as appropriate, by a date specified by the State agency or
sponsor, as appropriate. Only the parent or guardian who is a member of
the household or family for purposes of the free and reduced price meal
application
[[Page 162]]
may decline the disclosure of eligibility information to Medicaid or
SCHIP. The notification must inform parents/guardians that they are not
required to consent to the disclosure, that the information, if
disclosed, will be used to identify eligible children and seek to enroll
them in Medicaid or SCHIP, and that their decision will not affect their
children's eligibility for free or reduced price meals. The notification
may be included in the letter/notice to parents/guardians that
accompanies the free and reduced price meal application, on the
application itself or in a separate notice provided to parents/
guardians. The notice must give parents/guardians adequate time to
respond if they do not want their information disclosed. The State
agency or sponsor, as appropriate, must add substantially the following
statement to the Privacy Act notice/statement required under paragraph
(f) of this section, ``We may share your information with Medicaid or
the State Children's Health Insurance Program, unless you tell us not
to. The information, if disclosed, will be used to identify eligible
children and seek to enroll them in Medicaid or SCHIP.'' For children
determined eligible for free meals through direct certification, the
notice of potential disclosure and opportunity to decline the disclosure
may be included in the document informing parents/guardians of their
children's eligibility for free meals through direct certification
process.
(j) Other disclosures. State agencies and sponsors that plan to use
or disclose information about children eligible for free and reduced
price meals in ways not specified in this section must obtain written
consent from children's parents or guardians prior to the use or
disclosure.
(1) The consent must identify the information that will be shared
and how the information will be used.
(2) There must be a statement informing parents and guardians that
failing to sign the consent will not affect the child's eligibility for
free meals and that the individuals or programs receiving the
information will not share the information with any other entity or
program.
(3) Parents/guardians must be permitted to limit the consent only to
those programs with which they wish to share information.
(4) The consent statement must be signed and dated by the child's
parent or guardian who is a member of the household for purposes of the
free and reduced price meal application.
(k) Agreements with programs/individuals receiving children's free
or reduced price meal eligibility information. Agreements or Memoranda
of Understanding (MOU) are recommended or required as follows:
(1) The State agency or sponsor, as appropriate, should have a
written agreement or MOU with programs or individuals receiving
eligibility information, prior to disclosing children's free and reduced
price meal eligibility information. The agreement or MOU should include
information similar to that required for disclosures to Medicaid and
SCHIP specified in paragraph (k)(2) of this section.
(2) For disclosures to Medicaid or SCHIP, the State agency or
sponsor, as appropriate, must have a written agreement with the State or
local agency or agencies administering Medicaid or SCHIP prior to
disclosing children's free or reduced price meal eligibility information
to those agencies. At a minimum, the agreement must:
(i) Identify the health insurance program or health agency receiving
children's eligibility information;
(ii) Describe the information that will be disclosed;
(iii) Require that the Medicaid or SCHIP agency use the information
obtained and specify that the information must be used to seek to enroll
children in Medicaid or SCHIP;
(iv) Require that the Medicaid or SCHIP agency describe how they
will use the information obtained;
(v) Describe how the information will be protected from unauthorized
uses and disclosures;
(vi) Describe the penalties for unauthorized disclosure; and
(vii) Be signed by both the Medicaid or SCHIP program or agency and
the State agency or sponsor, as appropriate.
(l) Penalties for unauthorized disclosure or misuse of children's
free and reduced
[[Page 163]]
price meal eligibility information. In accordance with section
9(b)(6)(C) of the Richard B. Russell National School Lunch Act (42
U.S.C. 1758(b)(6)(C)), any individual who publishes, divulges, discloses
or makes known in any manner, or to any extent not authorized by statute
or this section, any information obtained under this section will be
fined not more than $1,000 or imprisoned for up to 1 year, or both.
(m) Food service management companies. (1) Failure by a sponsor to
comply with the provisions of this section shall be sufficient grounds
for the State agency to terminate that sponsor's participation in
accordance with Sec. 225.18.
(2) Any sponsor may contract with a food service management company
to manage the sponsor's food service operations and/or for the
preparation of unitized meals with or without milk or juice. Exceptions
to the unitizing requirement may only be made in accordance with the
provisions set forth at Sec. 225.6(h)(3).
(3) Any vended sponsor shall be responsible for ensuring that its
food service operation is in conformity with its agreement with the
State agency and with all the applicable provisions of this part.
(4) In addition to any applicable State or local laws governing bid
procedures, and with the exceptions identified in this paragraph, each
sponsor which contracts with a food service management company shall
comply with the competitive bid procedures described in this paragraph.
Sponsors which are schools or school food authorities and which have an
exclusive contract with a food service management company for year-round
service, and sponsors whose total contracts with food service management
companies will not exceed $10,000, shall not be required to comply with
these procedures. These exceptions do not relieve the sponsor of the
responsibility to ensure that competitive procurement procedures are
followed in contracting with any food service management company. Each
sponsor whose proposed contract is subject to the specific bid
procedures set forth in this paragraph shall ensure, at a minimum, that:
(i) All proposed contracts are publicly announced at least once, not
less than 14 calendar days prior to the opening of bids, and the
announcement includes the time and place of the bid opening;
(ii) The bids are publicly opened;
(iii) The State agency is notified, at least 14 calendar days prior
to the opening of the bids, of the time and place of the bid opening;
(iv) The invitation to bid does not specify a minimum price;
(v) The invitation to bid contains a cycle menu approved by the
State agency upon which the bid is based;
(vi) The invitation to bid contains food specifications and meal
quality standards approved by the State agency upon which the bid is
based;
(vii) The invitation to bid does not specify special meal
requirements to meet ethnic or religious needs unless such special
requirements are necessary to meet the needs of the children to be
served;
(viii) Neither the invitation to bid nor the contract provides for
loans or any other monetary benefit or term or condition to be made to
sponsors by food service management companies;
(ix) Nonfood items are excluded from the invitation to bid, except
where such items are essential to the conduct of the food service;
(x) Copies of all contracts between sponsors and food service
management companies, along with a certification of independent price
determination, are submitted to the State agency prior to the beginning
of Program operations;
(xi) Copies of all bids received are submitted to the State agency,
along with the sponsor's reason for choosing the successful bidder; and
(xii) All bids in an amount which exceeds the lowest bid and all
bids totaling $100,000 or more are submitted to the State agency for
approval before acceptance. State agencies shall respond to a request
for approval of such bids within 5 working days of receipt.
(5) Each food service management company which submits a bid over
$100,000 shall obtain a bid bond in an amount not less than five (5)
percent nor more than ten (10) percent, as determined by the sponsor, of
the value
[[Page 164]]
of the contract for which the bid is made. A copy of the bid bond shall
accompany each bid.
(6) Each food service management company which enters into a food
service contract for over $100,000 with a sponsor shall obtain a
performance bond in an amount not less than ten (10) percent nor more
than twenty-five (25) percent of the value of the contract, as
determined by the State agency, of the value of the contract for which
the bid is made. Any food service management company which enters into
more than one contract with any one sponsor shall obtain a performance
bond covering all contracts if the aggregate amount of the contracts
exceeds $100,000. Sponsors shall require the food service management
company to furnish a copy of the performance bond within ten days of the
awarding of the contract.
(7) Food service management companies shall obtain bid bonds and
performance bonds only from surety companies listed in the current
Department of the Treasury Circular 570. No sponsor or State agency
shall allow food service management companies to post any
``alternative'' forms of bid or performance bonds, including but not
limited to cash, certified checks, letters of credit, or escrow
accounts.
(n) Other responsibilities. Sponsors shall comply with all of the
meal service requirements set forth in Sec. 225.16.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13470, Apr. 10, 1990;
61 FR 25553, May 22, 1996; 64 FR 72486, Dec. 28, 1999; 64 FR 72898, Dec.
29, 1999; 65 FR 82251, Dec. 28, 2000; 66 FR 2202, Jan. 11, 2001; 72 FR
10895, Mar. 12, 2007]
Sec. 225.16 Meal service requirements.
(a) Sanitation. Sponsors shall ensure that in storing, preparing,
and serving food, proper sanitation and health standards are met which
conform with all applicable State and local laws and regulations.
Sponsors shall ensure that adequate facilities are available to store
food or hold meals. Within two weeks of receiving notification of their
approval, but in any case prior to commencement of Program operation,
sponsors shall submit to the State agency a copy of their letter
advising the appropriate health department of their intention to provide
a food service during a specific period at specific sites.
(b) Meal services. The meals which may be served under the Program
are breakfast, lunch, supper, and supplements, referred to from this
point as ``snacks''. No sponsor may be approved to provide more than two
snacks per day. A sponsor may only be reimbursed for meals served in
accordance with this section.
(1) Camps. Sponsors of camps shall only be reimbursed for meals
served in camps to children from families which meet the eligibility
standards for this Program. The sponsor shall maintain a copy of the
documentation establishing the eligibility of each child receiving meals
under the Program. Meal service at camps shall be subject to the
following provisions:
(i) Each day a camp may serve up to three meals or two meals and one
snack;
(ii) Residential camps are not subject to the time restrictions for
meal service set forth at paragraphs (c) (1) and (2) of this section;
and
(iii) A camp shall be approved to serve these meals only if it has
the administrative capability to do so; if the service period of the
different meals does not coincide or overlap; and, where applicable, if
it has adequate food preparation and holding facilities.
(2) NYSP Sites. Sponsors of NYSP sites shall only be reimbursed for
meals served to enrolled NYSP participants at these sites.
(3) Restrictions on the number and type of meals served. Food
service sites other than camps and sites that primarily serve migrant
children may serve either:
(i) One meal each day, a breakfast, a lunch, or snack; or
(ii) Two meals each day, if one is a lunch and the other is a
breakfast or a snack.
(4) Sites which serve children of migrant families. Food service
sites that primarily serve children from migrant families may be
approved to serve each day up to three meals or two meals and one snack.
These sites shall serve children in areas where poor economic conditions
exist as defined in Sec. 225.2. A sponsor which operates in accordance
[[Page 165]]
with this part shall receive reimbursement for all meals served to
children at these sites. A site which primarily serves children from
migrant families shall only be approved to serve more than one meal each
day if it has the administrative capability to do so; if the service
period of the different meals does not coincide or overlap; and, where
applicable, if it has adequate food preparation and holding facilities.
(c) Time restrictions for meal service. (1) Three hours must elapse
between the beginning of one meal service, including snacks, and the
beginning of another, except that 4 hours must elapse between the
service of a lunch and supper when no snack is served between lunch and
supper. The service of supper shall begin no later than 7 p.m., unless
the State agency has granted a waiver of this requirement due to
extenuating circumstances. These waivers shall be granted only when the
State agency and the sponsor ensure that special arrangements shall be
made to monitor these sites. In no case may the service of supper extend
beyond 8 p.m. The time restrictions in this paragraph shall not apply to
residential camps.
(2) The duration of the meal service shall be limited to two hours
for lunch or supper and one hour for all other meals.
(3) Meals served outside of the period of approved meal service
shall not be eligible for Program payments.
(4) Any permanent or planned changes in meal service periods must be
approved by the State agency.
(5) Meals which are not prepared at the food service site shall be
delivered no earlier than one hour prior to the beginning of the meal
service (unless the site has adequate facilities for holding hot or cold
meals within the temperatures required by State or local health
regulations) and no later than the beginning of the meal service.
(6) The sponsor shall claim for reimbursement only the type(s) of
meals for which it is approved under its agreement with the State
agency.
(d) Meal patterns. The meal requirements for the Program are
designed to provide nutritious and well-balanced meals to each child.
Sponsors shall ensure that meals served meet all of the requirements.
Except as otherwise provided in this section, the following tables
present the minimum requirements for meals served to children in the
Program. Children age 12 and up may be served larger portions based on
the greater food needs of older boys and girls.
(1) Breakfast. The minimum amount of food components to be served as
breakfast are as follows:
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
Vegetables and Fruits
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s) or..... \1/2\ cup.\1\
Full-strength vegetable or fruit \1/2\ cup (4 fluid ounces).
juice or an equivalent quantity of
any combination of vegetable(s),
fruits(s), and juice.
------------------------------------------------------------------------
Bread and Bread Alternates \2\
------------------------------------------------------------------------
Bread or............................ 1 slice.
Cornbread, biscuits, rolls, muffins, 1 serving.\3\
etc. or.
Cold dry cereal or.................. \3/4\ cup or 1 ounce.\4\
Cooked cereal or cereal grains or... \1/2\ cup.
Cooked pasta or noodle products or \1/2\ cup.
an equivalent quantity of any
combination of bread/bread
alternate.
------------------------------------------------------------------------
Milk \5\
------------------------------------------------------------------------
Milk, fluid......................... 1 cup (\1/2\ pint, 8 fluid
ounces).
------------------------------------------------------------------------
Meat and Meat Alternates (Optional)
------------------------------------------------------------------------
Lean meat or poultry or fish or..... 1 ounce.
Alternate protein product \6\ or.... 1 ounce.
Cheese or........................... 1 ounce.
Egg (large) or...................... \1/2\.
Cooked dry beans or peas or......... \1/4\ cup.
Peanut butter or an equivalent 2 tablespoons.
quantity of any combination of meat/
meat alternate or.
[[Page 166]]
Yogurt, plain or flavored, 4 ounces or \1/2\ cup.
unsweetened or sweetened.
------------------------------------------------------------------------
\1\ For the purposes of the requirement outlined in this table, a cup
means a standard measuring cup.
\2\ Bread, pasta or noodle products, and cereal grains (such as rice,
bulgur, or corn grits) shall be whole-grain or enriched; cornbread,
biscuits, rolls, muffins, etc., shall be made with whole-grain or
enriched meal or flour; cereal shall be whole-grain, enriched or
fortified.
\3\ Serving sizes and equivalents will be in guidance materials to be
distributed by FNS to State agencies.
\4\ Either volume (cup) or weight (ounces), whichever is less.
\5\ Milk shall be served as a beverage or on cereal or used in part for
each purpose.
\6\ Must meet the requirements in appendix A of this part.
(2) Lunch or supper. The minimum amounts of food components to be
served as lunch or supper are as follows:
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
Meat and Meat Alternates
------------------------------------------------------------------------
Lean meat or poultry or fish or..... 2 ounces.
Alternate protein products \1\ or... 2 ounces.
Cheese or........................... 2 ounces.
Egg (large) or...................... 1.
Cooked dry beans or peas or......... \1/2\ cup.\2\
Peanut butter or soynut butter or 4 tablespoons.
other nut or seed butters or.
Peanuts or soynuts or tree nuts or 1 ounce=50%.\4\
seed \3\ or.
Yogurt, plain or flavored, 8 ounces or 1 cup.
unsweetened or sweetened or an
equivalent quantity of any
combination of the above meat/meat
alternates.
------------------------------------------------------------------------
Vegetables and Fruits
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s) \5\.... \3/4\ cup total.
------------------------------------------------------------------------
Bread and Bread Alternatives \6\
------------------------------------------------------------------------
Bread or............................ 1 slice.
Cornbread, biscuits, rolls, muffins, 1 serving.\7\
etc. or.
Cooked pasta or noodle products or.. \1/2\ cup.
Cooked cereal grains or an \1/2\ cup.
equivalent quantity of any
combination of bread/bread
alternate.
------------------------------------------------------------------------
Milk
------------------------------------------------------------------------
Milk, fluid, served as a beverage... 1 cup (\1/2\ pint, 8 fluid
ounces).
------------------------------------------------------------------------
\1\ Must meet the requirements of appendix A of this part.
\2\ For the purposes of the requirement outlined in this table, a cup
means a standard measuring cup.
\3\ Tree nuts and seeds that may be used as meat alternate are listed in
program guidance.
\4\ No more than 50% of the requirement shall be met with nuts or seeds.
Nuts or seeds shall be combined with another meat/meat alternate to
fulfill the requirement. For purposes of determining combinations, 1
ounce of nuts or seeds is equal to 1 ounce of cooked lean meat,
poultry or fish.
\5\ Serve 2 or more kinds of vegetable(s) and/or fruits or a combination
of both. Full strength vegetable or fruit juice may be counted to meet
not more than one-half of this requirement.
\6\ Bread, pasta or noodle products, and cereal grains (such as rice,
bulgur, or corn grits) shall be whole-grain or enriched; cornbread,
biscuits, rolls, muffins, etc., shall be made with whole-grain or
enriched meal or flour; cereal shall be whole-grain, enriched or
fortified.
\7\ Serving sizes and equivalents will be in guidance materials to be
distributed by FNS to State agencies.
(3) Snacks. The minimum amounts of food components to be served as
snacks are as follows. Select two of the following four components.
(Juice may not be served when milk is served as the only other
component.)
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
Meat and Meat Alternates
------------------------------------------------------------------------
Lean meat or poultry or fish or..... 1 ounce.
Alternate protein products \1\ or... 1 ounce.
Cheese or........................... 1 ounce.
Egg (large) or...................... \1/2\.
Cooked dry beans or peas or......... \1/4\ cup \2\.
Peanut butter or soynut butter or 2 tablespoons.
other nut or seed butters or.
Peanuts or soynuts or tree nuts or 1 ounce.
seeds \3\ or.
[[Page 167]]
Yogurt, plain or flavored, 4 ounce or \1/2\ cup.
unsweetened or sweetened or an
equivalent quantity of any
combination of the above meat/meat
alternates.
------------------------------------------------------------------------
Vegetables and Fruits
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s) or..... \3/4\ cup.
Full-strength vegetable or fruit \3/4\ cup (6 fluid ounces).
juice or an equivalent quantity or
any combination of vegetable(s),
fruits(s) and juice.
------------------------------------------------------------------------
Bread and Bread Alternates \4\
------------------------------------------------------------------------
Bread or............................ 1 slice.
Cornbread, biscuits, rolls, muffins, 1 serving.\5\
etc. or.
Cold dry cereal or.................. \3/4\ cup or 1 ounce.\6\
Cooked cereal or.................... \1/2\ cup.
Cooked cereal grains or an \1/2\ cup.
equivalent quantity of any
combination of bread/bread
alternate.
------------------------------------------------------------------------
Milk \7\
------------------------------------------------------------------------
Milk, fluid......................... 1 cup (\1/2\ pint, 8 fluid
ounces).
------------------------------------------------------------------------
\1\ Must meet the requirements in appendix A of this part.
\2\ For the purposes of the requirement outlined in this table, a cup
means a standard measuring cup.
\3\ Tree nuts and seeds that may be used as meat alternates are listed
in program guidance.
\4\ Bread, pasta or noodle products, and cereal grains (such as rice,
bulgur, or corn grits) shall be whole-grain or enriched; cornbread,
biscuits, rolls, muffins, etc., shall be made with whole-grain or
enriched meal or flour; cereal shall be whole-grain, enriched or
fortified.
\5\ Serving sizes and equivalents will be in guidance materials to be
distributed by FNS to State agencies.
\6\ Either volume (cup) or weight (ounces), whichever is less.
\7\ Milk should be served as a beverage or on cereal, or used in part
for each purpose.
(e) Meat or meat alternate. Meat or meat alternates served under the
Program are subject to the following requirements and recommendations.
(1) The required quantity of meat or meat alternate shall be the
quantity of the edible portion as served. These foods must be served in
a main dish, or in a main dish and one other menu item.
(2) Cooked dry beans or peas may be used as a meat alternate or as a
vegetable, but they may not be used to meet both component requirements
in a meal.
(3) Enriched macaroni with fortified protein may be used to meet
part but not all of the meat/meat alternate requirement. The Department
will provide guidance to State agencies on the part of the meat/meat
alternate requirement which these foods may be used to meet. If enriched
macaroni with fortified protein is served as a meat alternate it shall
not be counted toward the bread requirement.
(4) If the sponsor believes that the recommended portion size of any
meat or meat alternate is too large to be appealing to children, the
sponsor may reduce the portion size of that meat or meat alternate and
supplement it with another meat or meat alternate to meet the full
requirement.
(5) Nuts and seeds and their butters listed in program guidance are
nutritionally comparable to meat or other meat alternates based on
available nutritional data. Acorns, chestnuts, and coconuts shall not be
used as meat alternates due to their low protein content. Nut and seed
meals or flours shall not be used as a meat alternate except as defined
in this section under paragraph (e)(3) and in this part under Appendix
A: Alternate Foods for Meals. As noted in paragraph (d)(2) of this
section, nuts or seeds may be used to meet no more than one-half of the
meat/meat alternate requirement for lunch or supper. Therefore, nuts or
seeds must be combined with another meat/meat alternate to fulfill the
requirement. For the supplemental food pattern, nuts or seeds may be
used to fulfill all of the meat/meat alternate requirement.
(f) Exceptions to and variations from the meal pattern--(1) Meals
provided by school food authorities--(i) Meal pattern substitution.
School food authorities that are Program sponsors and that participate
in the National School Lunch or School Breakfast Program
[[Page 168]]
during any time of the year may substitute the meal pattern requirements
of the regulations governing those programs (Parts 210 and 220 of this
chapter, respectively) for the meal pattern requirements in this
section.
(ii) Offer versus serve. School food authorities that are Program
sponsors may permit a child to refuse one or more items that the child
does not intend to eat. The school food authority must apply this
``offer versus serve'' option under the rules followed for the National
School Lunch Program, as described in part 210 of this chapter. The
reimbursements to school food authorities for Program meals served under
the ``offer versus serve'' must not be reduced because children choose
not to take all components of the meals that are offered.
(2) Children under 6. The State agency may authorize the sponsor to
serve food in smaller quantities than are indicated in paragraph (d) of
this section to children under six years of age if the sponsor has the
capability to ensure that variations in portion size are in accordance
with the age levels of the children served. Sponsors wishing to serve
children under one year of age shall first receive approval to do so
from the State agency. In both cases, the sponsor shall follow the age-
appropriate meal pattern requirements contained in the Child and Adult
Care Food Program regulations (7 CFR part 226).
(3) Statewide substitutions. In American Samoa, Puerto Rico, Guam,
the Virgin Islands, the Trust Territory of the Pacific Islands, and the
Northern Mariana Islands, the following variations from the meal
requirements are authorized: A serving of a starchy vegetable--such as
ufi, tanniers, yams, plantains, or sweet potatoes--may be substituted
for the bread requirements.
(4) Individual substitutions. Substitutions may be made by sponsors
in food listed in paragraph (d) of this section if individual
participating children are unable, because of medical or other special
dietary needs, to consume such foods. Such substitutions shall be made
only when supported by a statement from a recognized medical authority
which includes recommended alternate foods. Such statement shall be kept
on file by the sponsor.
(5) Special variations. FNS may approve variations in the food
components of the meals on an experimental or a continuing basis for any
sponsor where there is evidence that such variations are nutritionally
sound and are necessary to meet ethnic, religious, economic, or physical
needs.
(6) Temporary unavailability of milk. If emergency conditions
prevent a sponsor normally having a supply of milk from temporarily
obtaining milk deliveries, the State agency may approve the service of
breakfasts, lunches or suppers without milk during the emergency period.
(7) Continuing unavailability of milk. The inability of a sponsor to
obtain a supply of milk on a continuing basis shall not bar it from
participation in the Program. In such cases, the State agency may
approve service of meals without milk, provided that an equivalent
amount of canned, whole dry or nonfat dry milk is used in the
preparation of the milk components set forth in paragraph (d) of this
section. In addition, the State agency may approve the use of nonfat dry
milk in meals served to children participating in activities which make
the service of fluid milk impracticable, and in locations which are
unable to obtain fluid milk. Such authorization shall stipulate that
nonfat dry milk be reconstituted at normal dilution and under sanitary
conditions consistent with State and local health regulations.
(8) Additional foods. To improve the nutrition of participating
children, additional foods may be served with each meal.
[54 FR 18208, Apr. 27, 1989, as amended at 54 FR 27153, June 28, 1989;
Amdt. 2, 55 FR 1377, Jan. 14, 1990; 55 FR 13470, Apr. 10, 1990; 61 FR
37672, July 19, 1996; 62 FR 10191, Mar. 6, 1997; 64 FR 72487, Dec. 28,
1999; 64 FR 72487, Dec. 28, 1999; 65 FR 12437, Mar. 9, 2000; 65 FR
82251, Dec. 28, 2000]
Subpart D_General Administrative Provisions
Sec. 225.17 Procurement standards.
(a) State agencies and sponsors shall comply with the requirements
of 7 CFR
[[Page 169]]
part 3016 or 7 CFR part 3019, as applicable, concerning the procurement
of supplies, food, equipment and other services with Program funds.
These requirements ensure that such materials and services are obtained
for the program efficiently and economically and in compliance with
applicable laws and executive orders. Sponsors may use their own
procedures for procurement with Program funds to the extent that:
(1) Procurements by public sponsors comply with applicable State or
local laws and the standards set forth in 7 CFR part 3016; and
(2) Procurements by private nonprofit sponsors comply with standards
set forth in 7 CFR part 3019.
(b) The State agency shall make available to sponsors information on
7 CFR part 3016 or 7 CFR part 3019, as applicable.
(c) Sponsors may use their own procurement procedures which reflect
applicable State and local laws and regulations, provided that
procurements made with Program funds conform with provisions of this
section, as well as with procurement requirements which may be
established by the State agency, with approval of FNS, to prevent fraud,
waste, and Program abuse.
(d) The State agency shall ensure that each sponsor is aware of the
following practices specified in 7 CFR part 3016 or 7 CFR part 3019, as
applicable, with respect to minority business enterprises:
(1) Including qualified minority business enterprises on
solicitation lists,
(2) Soliciting minority business enterprises whenever they are
potential sources,
(3) When economically feasible, dividing total requirements into
smaller tasks or quantities so as to permit maximum participation by
minority business enterprises,
(4) Establishing delivery schedules which will assist minority
business enterprises to meet deadlines, and
(5) Using the services and assistance of the Small Business
Administration, and the Office of Minority Business Enterprise of the
Department of Commerce as required.
[54 FR 18208, Apr. 27, 1989, as amended at 71 FR 39518, July 13, 2006]
Sec. 225.18 Miscellaneous administrative provisions.
(a) Grant closeout procedures. Grant closeout procedures for the
Program shall be in accordance with 7 CFR part 3016 or 7 CFR part 3019,
as applicable.
(b) Termination for cause. (1) FNS may terminate a State agency's
participation in the Program in whole, or in part, whenever it is
determined that the State agency has failed to comply with the
conditions of the Program. FNS shall promptly notify the State agency in
writing of the termination and reason for the termination, together with
the effective date, and shall allow the State 30 calendar days to
respond. In instances where the State does respond, FNS shall inform the
State of its final determination no later than 30 calendar days after
the State responds.
(2) A State agency shall terminate a sponsor's participation in the
Program by written notice whenever it is determined by the State agency
that the sponsor has failed to comply with the conditions of the
Program.
(3) When participation in the Program has been terminated for cause,
any funds paid to the State agency or a sponsor or any recoveries by FNS
from the State agency or by the State agency from a sponsor shall be in
accordance with the legal rights and liabilities of the parties.
(c) Termination for convenience. FNS and the State agency may agree
to terminate the State agency's participation in the Program in whole,
or in part, when both parties agree that the continuation of the Program
would not produce beneficial results commensurate with the further
expenditure of funds. The two parties shall agree upon the termination
conditions, including the effective date, and in the case of partial
termination, the portion to be terminated. The State agency shall not
incur new obligations for the terminated portion after the effective
date, and shall cancel as many outstanding obligations as possible. The
Department shall allow full credit to the State agency for the Federal
share of the noncancellable obligation properly incurred by the State
agency prior to
[[Page 170]]
termination. A State agency may terminate a sponsor's participation in
the manner provided for in this paragraph.
(d) Maintenance of effort. Expenditure of funds from State and local
sources for the maintenance of food programs for children shall not be
diminished as a result of funds received under the Act and a
certification to this effect shall become part of the agreement provided
for in Sec. 225.3(c).
(e) Program benefits. The value of benefits and assistance available
under the Program shall not be considered as income or resources of
recipients and their families for any purpose under Federal, State or
local laws, including, but not limited to, laws relating to taxation,
welfare, and public assistance programs.
(f) State requirements. Nothing contained in this part shall prevent
a State agency from imposing additional operating requirements which are
not inconsistent with the provisions of this part, provided that such
additional requirements shall not deny the Program to an area in which
poor economic conditions exist, and shall not result in a significant
number of needy children not having access to the Program. Prior to
imposing any additional requirements, the State agency must receive
approval from FNSRO.
(g) Fraud penalty. Whoever embezzles, willfully misapplies, steals,
or obtains by fraud any funds, assets, or property that are the subject
of a grant or other form of assistance under this part, whether received
directly or indirectly from the Department, or whoever receives,
conceals, or retains such funds, assets, or property to his use or gain,
knowing such funds, assets, or property have been embezzled, willfully
misapplied, stolen or obtained by fraud shall, if such funds, assets, or
property are of the value of $100 or more, be fined not more than
$100,000 or imprisoned not more than five years, or both, or if such
funds, assets, or property are of a value of less than $100, shall be
fined not more than $1,000 or imprisoned for not more than one year, or
both.
(h) Claims adjustment authority. The Secretary shall have the
authority to determine the amount of, to settle, and to adjust any claim
arising under the Program, and to compromise or deny such claim or any
part thereof. The Secretary shall also have the authority to waive such
claims if the Secretary determines that to do so would serve the
purposes of the Program. This provision shall not diminish the authority
of the Attorney General of the United States under section 516 of title
28, U.S. Code, to conduct litigation on behalf of the United States.
(i) Data collection related to sponsors. (1) Each State agency must
collect data related to sponsors that have an agreement with the State
agency to participate in the program for each of Federal fiscal years
2006 through 2009, including those sponsors that participated only for
part of the fiscal year. Such data shall include:
(i) The name of each sponsor;
(ii) The city in which each participating sponsor was headquartered
and the name of the state;
(iii) The amount of funds provided to the participating
organization, i.e., the sum of the amount of federal funds reimbursed
for operating and administrative cost; and
(iv) The type of participating organization, e.g., government
agency, educational institution, non-profit organization/secular, non-
profit organization/faith-based, and ``other.''
(2) On or before August 31, 2007, and each subsequent year through
2010, State agencies must report to FNS data as specified in paragraph
(i)(1) of this section for the prior Federal fiscal year. State agencies
must submit this data in a format designated by FNS.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13471, Apr. 10, 1990;
64 FR 72488, Dec. 28, 1999; 71 FR 39518, July 13, 2006; 72 FR 24183, May
2, 2007]
Sec. 225.19 Regional office addresses.
Persons desiring information concerning the Program may write to the
appropriate State agency or Regional Office of FNS as indicated below:
(a) In the States of Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, and Vermont: Northeast Regional
Office, FNS, U.S. Department of Agriculture, 10 Causeway Street, Room
501, Boston, MA 02222-1065.
[[Page 171]]
(b) In the States of Delaware, District of Columbia, Maryland, New
Jersey, Pennsylvania, Puerto Rico, Virginia, Virgin Islands, and West
Virginia: Mid-Atlantic Regional Office, FNS, U.S. Department of
Agriculture, Mercer Corporate Park, 300 Corporate Boulevard,
Robbinsville, NJ 08691-1598.
(c) In the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee: Southeast
Regional Office, FNS, U.S. Department of Agriculture, 61 Forsyth Street,
SW., Room 8T36, Atlanta, GA 30303-3415.
(d) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio,
and Wisconsin: Midwest Regional Office, FNS, U.S. Department of
Agriculture, 77 West Jackson Boulevard, 20th Floor, Chicago, IL 60604-
3507.
(e) In the States of Arkansas, Louisiana, New Mexico, Oklahoma and
Texas: Southwest Regional Office, FNS, U.S. Department of Agriculture,
1100 Commerce Street, Room 5-C-30, Dallas, TX 75242-9980.
(f) In the States of Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Utah and Wyoming: Mountain Plains
Regional Office, FNS, U.S. Department of Agriculture, 1244 Speer
Boulevard, Suite 903, Denver, CO 80204-3581.
(g) In the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon, the Commonwealth of the Northern
Mariana Islands, and Washington: Western Regional Office, FNS, U.S.
Department of Agriculture, 550 Kearney Street, Room 400, San Francisco,
CA 94108-2518.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13471, Apr. 10, 1990;
65 FR 12439, Mar. 9, 2000; 65 FR 82251, Dec. 28, 2000]
Sec. 225.20 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control No.
------------------------------------------------------------------------
225.3-225.4................................................ 0584-0280
225.6-225.10............................................... 0584-0280
225.12-225.13.............................................. 0584-0280
225.15-225.18.............................................. 0584-0280
------------------------------------------------------------------------
[61 FR 25554, May 22, 1996]
Sec. Appendix A to Part 225--Alternate Foods for Meals
Alternate Protein Products
A. What Are the Criteria for Alternate Protein Products Used in the
Summer Food Service Program?
1. An alternate protein product used in meals planned under the
provisions in Sec. 225.16 must meet all of the criteria in this
section.
2. An alternate protein product whether used alone or in combination
with meat or other meat alternates must meet the following criteria:
a. The alternate protein product must be processed so that some
portion of the non-protein constituents of the food is removed. These
alternate protein products must be safe and suitable edible products
produced from plant or animal sources.
b. The biological quality of the protein in the alternate protein
product must be at least 80 percent that of casein, determined by
performing a Protein Digestibility Corrected Amino Acid Score (PDCAAS).
c. The alternate protein product must contain at least 18 percent
protein by weight when fully hydrated or formulated. (``When hydrated or
formulated'' refers to a dry alternate protein product and the amount of
water, fat, oil, colors, flavors or any other substances which have been
added).
d. Manufacturers supplying an alternate protein product to
participating schools or institutions must provide documentation that
the product meets the criteria in paragraphs A. 2. a through c of this
appendix.
e. Manufacturers should provide information on the percent protein
contained in the dry alternate protein product and on an as prepared
basis.
f. For an alternate protein product mix, manufacturers should
provide information on:
(1) The amount by weight of dry alternate protein product in the
package;
(2) Hydration instructions; and
(3) Instructions on how to combine the mix with meat or other meat
alternates.
B. How Are Alternate Protein Products Used in the Summer Food Service
Program?
1. Schools, institutions, and service institutions may use alternate
protein products to fulfill all or part of the meat/meat alternate
component discussed in Sec. 225.20.
2. The following terms and conditions apply:
a. The alternate protein product may be used alone or in combination
with other food ingredients. Examples of combination items are beef
patties, beef crumbles, pizza topping, meat loaf, meat sauce, taco
filling, burritos, and tuna salad.
[[Page 172]]
b. Alternate protein products may be used in the dry form
(nonhydrated), partially hydrated or fully hydrated form. The moisture
content of the fully hydrated alternate protein product (if prepared
from a dry concentrated form) must be such that the mixture will have a
minimum of 18 percent protein by weight or equivalent amount for the dry
or partially hydrated form (based on the level that would be provided if
the product were fully hydrated).
C. How Are Commercially Prepared Products Used in the Summer Food
Service Program?
Schools, institutions, and service institutions may use a
commercially prepared meat or meat alternate products combined with
alternate protein products or use a commercially prepared product that
contains only alternate protein products.
[65 FR 12439, Mar. 9, 2000]
Sec. Appendix B to Part 225 [Reserved]
Sec. Appendix C to Part 225--Child Nutrition (CN) Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service (FNS) in conjunction with the Food Safety and Inspection Service
(FSIS) and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture (USDA), and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/meat alternate component of meal pattern
requirements of 7 CFR 210.10, 225.16, and 226.20 and are served in the
main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) CN label is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3(b) and (c) below.
(b) The CN logo (as shown below) is a distinct border which is used
around the edges of a ``CN label statement'' as defined in paragraph
3(c).
[GRAPHIC] [TIFF OMITTED] TC17SE91.006
(c) The CN label statement includes the following:
(1) The product identification number (assigned by FNS);
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10, 220.8, 225.16, and 226.20. The statement
shall identify the contribution of a specific portion of a meat/meat
alternate product toward the meat/meat alternate, bread/bread alternate,
and/or vegetable/fruit component of the meal pattern requirements. For
juice drinks and juice drink products the statement shall identify their
contribution toward the vegetable/fruit component of the meal pattern
requirements.
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[[Page 173]]
[GRAPHIC] [TIFF OMITTED] TC17SE91.007
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by the Food and Nutrition Service and appropriate USDA or USDC Federal
agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate and the manufacturer's or
distributor's name and address.
(1) The inspection marking for CN labeled non-meat, non-poultry, and
non-seafood products with the exception of juice drinks and juice drink
products is established as follows:
[GRAPHIC] [TIFF OMITTED] TC17SE91.008
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program Aid Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the child nutrition programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10, 220.8, 225.16, and 226.20. If a State or
Federal auditor finds that a product that is CN labeled does not
actually meet the meal pattern requirements claimed on the label, the
auditor will report this finding to FNS. FNS will prepare a report on
the findings and send it to the appropriate divisions of FSIS and AMS of
the USDA, National Marine Fisheries Service of the USDC, Food and Drug
Administration, or the Department of Justice for action against the
company. Any or all of the following courses of action may be taken: (a)
The company's CN label may be revoked for a specific period of time; (b)
The appropriate agency may pursue a misbranding or mislabeling action
against the company producing the product; (c) The company's name will
be circulated to regional FNS offices; and (d) FNS will require the food
service program involved to notify the State agency of the labeling
violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program. To apply for a CN label and to
obtain additional information on CN label application procedures, write
to: CN Labels, U.S. Department of Agriculture, Food and Nutrition
Service, Nutrition and Technical Services Division, 3101 Park Center
Drive, Alexandria, Virginia 22302.
PART 226_CHILD AND ADULT CARE FOOD PROGRAM--Table of Contents
Subpart A_General
Sec.
226.1 General purpose and scope.
226.2 Definitions.
226.3 Administration.
Subpart B_Assistance to States
226.4 Payments to States and use of funds.
226.5 Donation of commodities.
Subpart C_State Agency Provisions
226.6 State agency administrative responsibilities.
226.7 State agency responsibilities for financial management.
[[Page 174]]
226.8 Audits.
Subpart D_Payment Provisions
226.9 Assignment of rates of reimbursement for centers.
226.10 Program payment procedures.
226.11 Program payments for centers.
226.12 Administrative payments to sponsoring organizations for day care
homes.
226.13 Food service payments to sponsoring organizations for day care
homes.
226.14 Claims against institutions.
Subpart E_Operational Provisions
226.15 Institution provisions.
226.16 Sponsoring organization provisions.
226.17 Child care center provisions.
226.17a At-risk afterschool care center provisions.
226.18 Day care home provisions.
226.19 Outside-school-hours care center provisions.
226.19a Adult day care center provisions.
226.20 Requirements for meals.
226.21 Food service management companies.
226.22 Procurement standards.
226.23 Free and reduced-price meals.
Subpart F_Food Service Equipment Provisions
226.24 Property management requirements.
Subpart G_Other Provisions
226.25 Other provisions.
226.26 Program information.
226.27 Information collection/recordkeeping--OMB assigned control
numbers.
Appendix A to Part 226--Alternate Foods for Meals
Appendix B to Part 226 [Reserved]
Appendix C to Part 226--Child Nutrition (CN) Labeling Program
Authority: Secs. 9, 11, 14, 16, and 17, Richard B. Russell National
School Lunch Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and
1766).
Source: 47 FR 36527, Aug. 20, 1982, unless otherwise noted.
Editorial Note: Nomenclature changes to part 226 appear at 70 FR
43261, July 27, 2005.
Subpart A_General
Sec. 226.1 General purpose and scope.
This part announces the regulations under which the Secretary of
Agriculture will carry out the Child and Adult Care Food Program.
Section 17 of the National School Lunch Act, as amended, authorizes
assistance to States through grants-in-aid and other means to initiate,
maintain, and expand nonprofit food service programs for children or
adult participants in nonresidential institutions which provide care.
The Program is intended to enable such institutions to integrate a
nutritious food service with organized care services for enrolled
participants. Payments will be made to State agencies or FNS Regional
Offices to enable them to reimburse institutions for food service to
enrolled participants.
[53 FR 52587, Dec. 28, 1988, as amended by Amdt. 22, 55 FR 1377, Jan.
14, 1990]
Sec. 226.2 Definitions.
Act means the National School Lunch Act, as amended.
Administrative costs means costs incurred by an institution related
to planning, organizing, and managing a food service under the Program,
and allowed by the State agency financial management instruction. These
administrative costs may include administrative expenses associated with
outreach and recruitment of unlicensed family or group day care homes
and the allowable licensing-related expenses of such homes.
Administrative review means the fair hearing provided upon request
to:
(a) An institution that has been given notice by the State agency of
any action or proposed action that will affect their participation or
reimbursement under the Program, in accordance with Sec. 226.6(k);
(b) A principal or individual responsible for an institution's
serious deficiency after the responsible principal or responsible
individual has been given a notice of intent to disqualify them from the
Program; and
(c) A day care home that has been given a notice of proposed
termination for cause.
Administrative review official means the independent and impartial
official who conducts the administrative review held in accordance with
Sec. 226.6(k).
Adult means, for the purposes of the collection of social security
numbers as a condition of eligibility for free or reduced-price meals,
any individual 21 years of age or older.
Adult day care center means any public or private nonprofit
organization or
[[Page 175]]
any for-profit center (as defined in this section) which (a) is licensed
or approved by Federal, State or local authorities to provide
nonresidential adult day care services to functionally impaired adults
(as defined in this section) or persons 60 years of age or older in a
group setting outside their homes or a group living arrangement on a
less than 24-hour basis and (b) provides for such care and services
directly or under arrangements made by the agency or organization
whereby the agency or organization maintains professional management
responsibility for all such services. Such centers shall provide a
structured, comprehensive program that provides a variety of health,
social and related support services to enrolled adult participants
through an individual plan of care.
Adult day care facility means a licensed or approved adult day care
center under the auspices of a sponsoring organization.
Adult participant means a person enrolled in an adult day care
center who is functionally impaired (as defined in this section) or 60
years of age or older.
Advanced payments means financial assistance made available to an
institution for its Program costs prior to the month in which such costs
will be incurred.
At-risk afterschool care center means a public or private nonprofit
organization that is participating or is eligible to participate in the
CACFP as an institution or as a sponsored facility and that provides
nonresidential child care to children after school through an approved
afterschool care program located in an eligible area. However, an
Emergency shelter, as defined in this section, may participate as an at-
risk afterschool care center without regard to location.
Block claim means a claim for reimbursement submitted by a facility
on which the number of meals claimed for one or more meal type
(breakfast, lunch, snack, or supper) is identical for 15 consecutive
days within a claiming period.
CACFP child care standards means the Child and Adult Care Food
Program child care standards developed by the Department for alternate
approval of child care centers, and day care homes by the State agency
under the provisions of Sec. 226.6(d)(3) and (4).
Center means a child care center, at-risk afterschool care center,
an adult day care center, an emergency shelter, or an outside-school-
hours care center.
Child care center means any public or private nonprofit institution
or facility (except day care homes), or any for-profit center, as
defined in this section, that is licensed or approved to provide
nonresidential child care services to enrolled children, primarily of
preschool age, including but not limited to day care centers, settlement
houses, neighborhood centers, Head Start centers and organizations
providing day care services for children with disabilities. Child care
centers may participate in the Program as independent centers or under
the auspices of a sponsoring organization.
Child care facility means a licensed or approved child care center,
at-risk afterschool care center, day care home, emergency shelter, or
outside-school-hours care center under the auspices of a sponsoring
organization.
Children means:
(a) Persons age 12 and under;
(b) Persons age 15 and under who are children of migrant workers;
(c) Persons with disabilities as defined in this section;
(d) For emergency shelters, persons age 18 and under; and
(e) For at-risk afterschool care centers, persons age 18 and under
at the start of the school year.
Claiming percentage means the ratio of the number of enrolled
participants in an institution in each reimbursement category (free,
reduced-price or paid) to the total of enrolled participants in the
institution.
Current income means income received during the month prior to
application for free or reduced-price meals. If such income does not
accurately reflect the household's annual income, income shall be based
on the projected annual household income. If the prior year's income
provides an accurate reflection of the household's current annual
income, the prior year may be used as a base for the projected annual
income.
Day care home means an organized nonresidential child care program
for
[[Page 176]]
children enrolled in a private home, licensed or approved as a family or
group day care home and under the auspices of a sponsoring organization.
Days means calendar days unless otherwise specified.
Department means the U.S. Department of Agriculture.
Disclosure means reveal or use individual children's program
eligibility information obtained through the free and reduced price meal
eligibility process for a purpose other than for the purpose for which
the information was obtained. The term refers to access, release, or
transfer of personal data about children by means of print, tape,
microfilm, microfiche, electronic communication or any other means.
Disqualified means the status of an institution, a responsible
principal or responsible individual, or a day care home that is
ineligible for participation.
Documentation means:
(a) The completion of the following information on a free and
reduced-price application:
(1) Names of all household members;
(2) Income received by each household member, identified by source
of income (such as earnings, wages, welfare, pensions, support payments,
unemployment compensation, social security and other cash income);
(3) The signature of an adult household member; and
(4) The social security number of the adult household member who
signs the application, or an indication that he/she does not possess a
social security number; or
(b) For a child who is a member of a food stamp or FDPIR household
or who is a TANF recipient, ``documentation'' means the completion of
only the following information on a free and reduced price application:
(1) The name(s) and appropriate food stamp, FDPIR or TANF case
number(s) for the child(ren); and
(2) The signature of an adult member of the household; or
(c) For a child in a tier II day care home who is a member of a
household participating in a Federally or State supported child care or
other benefit program with an income eligibility limit that does not
exceed the eligibility standard for free or reduced price meals:
(1) The name(s), appropriate case number(s) (if the program utilizes
case numbers), and name(s) of the qualifying program(s) for the
child(ren), and the signature of an adult member of the household; or
(2) If the sponsoring organization or day care home possesses it,
official evidence of the household's participation in a qualifying
program (submission of a free and reduced price application by the
household is not required in this case); or
(d) For an adult participant who is a member of a food stamp or
FDPIR household or is an SSI or Medicaid participant, as defined in this
section, ``documentation'' means the completion of only the following
information on a free and reduced price application:
(1) The name(s) and appropriate food stamp or FDPIR case number(s)
for the participant(s) or the adult participant's SSI or Medicaid
identification number, as defined in this section; and
(2) The signature of an adult member of the household; or
(e) For a child who is a Head Start participant, the Head Start
statement of income eligibility issued upon initial enrollment in the
Head Start Program or, if such statement is unavailable, other
documentation from Head Start officials that the child's family meets
the Head Start Program's low-income criteria.
Eligible area means:
(a) For the purpose of determining the eligibility of at-risk
afterschool care centers, the attendance area of an elementary, middle,
or high school in which at least 50 percent of the enrolled children are
certified eligible for free or reduced-price school meals; or
(b) For the purpose of determining the tiering status of day care
homes, the area served by an elementary school in which at least 50
percent of the total number of children are certified eligible to
receive free or reduced-price meals, or the area based on census data in
which at least 50 percent of the children residing in the area are
members of households that meet the income standards for free or
reduced-price meals.
[[Page 177]]
Emergency shelter means a public or private nonprofit organization
or its site that provides temporary shelter and food services to
homeless children, including a residential child care institution (RCCI)
that serves a distinct group of homeless children who are not enrolled
in the RCCI's regular program.
Enrolled child means a child whose parent or guardian has submitted
to an institution a signed document which indicates that the child is
enrolled for child care. In addition, for the purposes of calculations
made by sponsoring organizations of family day care homes in accordance
with Sec. Sec. 226.13(d)(3)(ii) and 226.13(d)(3)(iii), ``enrolled
child'' (or ``child in attendance'') means a child whose parent or
guardian has submitted a signed document which indicates that the child
is enrolled for child care; who is present in the day care home for the
purpose of child care; and who has eaten at least one meal during the
claiming period. For at-risk afterschool care centers, outside-school-
hours care centers, or emergency shelters, the term ``enrolled child''
or ``enrolled participant'' does not apply.
Enrolled participant means an ``Enrolled child'' (as defined in this
section) or ``Adult participant'' (as defined in this section).
Expansion payments means financial assistance made available to a
sponsoring organization for its administrative expenses associated with
expanding a food service program to day care homes located in low-income
or rural areas. These expansion payments may include administrative
expenses associated with outreach and recruitment of unlicensed family
or group day care homes and the allowable licensing-related expenses of
such homes.
Facility means a sponsored center or a family day care home.
Family means, in the case of children, a group of related or
nonrelated individuals, who are not residents of an institution or
boarding house, but who are living as one economic unit or, in the case
of adult participants, the adult participant, and if residing with the
adult participant, the spouse and dependent(s) of the adult participant.
FDPIR household means any individual or group of individuals which
is currently certified to receive assistance as a household under the
Food Distribution Program on Indian Reservations.
Fiscal Year means a period of 12 calendar months beginning October 1
of any year and ending with September 30 of the following year.
FNS means the Food and Nutrition Service of the Department.
FNSRO means the appropriate Regional Office of the Food and
Nutrition Service.
Food service equipment assistance means Federal financial assistance
formerly made available to State agencies to assist institutions in the
purchase or rental of equipment to enable institutions to establish,
maintain or expand food service under the Program.
Food service management company means an organization other than a
public or private nonprofit school, with which an institution may
contract for preparing and, unless otherwise provided for, delivering
meals, with or without milk for use in the Program.
Food Stamp household means any individual or group of individuals
which is currently certified to receive assistance as a household under
the Food Stamp Program.
For-profit center means a child care center, outside-school-hours
care center, or adult day care center providing nonresidential care to
adults or children that does not qualify for tax-exempt status under the
Internal Revenue Code of 1986. For-profit centers serving adults must
meet the criteria described in paragraph (a) of this definition. For-
profit centers serving children must meet the criteria described in
paragraphs (b)(1) or (b)(2) of this definition, except that children who
only participate in the at-risk afterschool snack component of the
Program must not be considered in determining the percentages under
paragraphs (b)(1) or (b)(2) of this definition.
(a) A for-profit center serving adults must meet the definition of
Adult day care center as defined in this section and, during the
calendar month preceding initial application or reapplication, the
center receives compensation from amounts granted to the States under
title XIX or title XX and twenty-five percent of the adults enrolled in
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care are beneficiaries of title XIX, title XX, or a combination of
titles XIX and XX of the Social Security Act.
(b) A for-profit center serving children must meet the definition of
Child care center or Outside-school-hours care center as defined in this
section and one of the following conditions during the calendar month
preceding initial application or reapplication:
(1) Twenty-five percent of the children in care (enrolled or
licensed capacity, whichever is less) are eligible for free or reduced-
price meals; or
(2) Twenty-five percent of the children in care (enrolled or
licensed capacity, whichever is less) receive benefits from title XX of
the Social Security Act and the center receives compensation from
amounts granted to the States under title XX.
Free meal means a meal served under the Program to a participant
from a family which meets the income standards for free school meals; or
to a child who is automatically eligible for free meals by virtue of
food stamp, FDPIR, or TANF recipiency; or to a child who is a Head Start
participant; or to a child who is receiving temporary housing and meal
services from an approved emergency shelter; a child participating in an
approved at-risk afterschool care program; or to an adult participant
who is automatically eligible for free meals by virtue of food stamp or
FDPIR recipiency or is a SSI or Medicaid participant. Regardless of
whether the participant qualified for free meals by virtue of meeting
one of the criteria of this definition, neither the participant nor any
member of their family shall be required to pay or to work in the food
service program in order to receive a free meal.
Functionally impaired adult means chronically impaired disabled
persons 18 years of age or older, including victims of Alzheimer's
disease and related disorders with neurological and organic brain
dysfunction, who are physically or mentally impaired to the extent that
their capacity for independence and their ability to carry out
activities of daily living is markedly limited. Activities of daily
living include, but are not limited to, adaptive activities such as
cleaning, shopping, cooking, taking public transportation, maintaining a
residence, caring appropriately for one's grooming or hygiene, using
telephones and directories, or using a post office. Marked limitations
refer to the severity of impairment, and not the number of limited
activities, and occur when the degree of limitation is such as to
seriously interfere with the ability to function independently.
Group living arrangement means residential communities which may or
may not be subsidized by federal, State or local funds but which are
private residences housing an individual or a group of individuals who
are primarily responsible for their own care and who maintain a presence
in the community but who may receive on-site monitoring.
Head Start participant means a child currently receiving assistance
under a Federally-funded Head Start Program who is categorically
eligible for free meals in the CACFP by virtue of meeting Head Start's
low-income criteria.
Household means ``family'', as defined in Sec. 226.2 (``Family'').
Household contact means a contact made by a sponsoring organization
or a State agency to an adult member of a household with a child in a
family day care home or a child care center in order to verify the
attendance and enrollment of the child and the specific meal service(s)
which the child routinely receives while in care.
Income standards means the family-size and income standards
prescribed annually by the Secretary for determining eligibility for
free and reduced-price meals under the National School Lunch Program and
the School Breakfast Program.
Income to the program means any funds used in an institution's food
service program, including, but not limited to all monies, other than
Program payments, received from other Federal, State, intermediate, or
local government sources; participant's payments for meals and food
service fees; income from any food sales to adults; and other income,
including cash donations or grants from organizations or individuals.
Independent center means a child care center, at-risk afterschool
care center, emergency shelter, outside-school-hours care center or
adult day care
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center which enters into an agreement with the State agency to assume
final administrative and financial responsibility for Program
operations.
Infant cereal means any iron-fortified dry cereal specially
formulated for and generally recognized as cereal for infants that is
routinely mixed with breast milk or iron-fortified infant formula prior
to consumption.
Infant formula means any iron-fortified formula intended for dietary
use solely as a food for normal, healthy infants; excluding those
formulas specifically formulated for infants with inborn errors of
metabolism or digestive or absorptive problems. Infant formula, as
served, must be in liquid state at recommended dilution.
Institution means a sponsoring organization, child care center, at-
risk afterschool care center, outside-school-hours care center,
emergency shelter or adult day care center which enters into an
agreement with the State agency to assume final administrative and
financial responsibility for Program operations.
Internal controls means the policies, procedures, and organizational
structure of an institution designed to reasonably assure that:
(a) The Program achieves its intended result;
(b) Program resources are used in a manner that protects against
fraud, abuse, and mismanagement and in accordance with law, regulations,
and guidance; and
(c) Timely and reliable Program information is obtained, maintained,
reported, and used for decision-making.
Key Element Reporting System (KERS) means a comprehensive national
system for reporting critical key element performance data on the
operation of the program in institutions.
Low-income area means a geographical area in which at least 50
percent of the children are eligible for free or reduced price school
meals under the National School Lunch Program and the School Breakfast
Program, as determined in accordance with paragraphs (b) and (c),
definition of tier I day care home.
Meals means food which is served to enrolled participants at an
institution, child care facility or adult day care facility and which
meets the nutritional requirements set forth in this part. However,
children participating in at-risk afterschool care centers, emergency
shelters, or outside-schools-hours care centers do not have to be
enrolled.
Medicaid means Title XIX of the Social Security Act.
Medicaid participant means an adult participant who receives
assistance under title XIX of the Social Security Act, the Grant to
States for Medical Assistance Programs--Medicaid.
Milk means pasteurized fluid types of unflavored or flavored whole
milk, lowfat milk, skim milk, or cultured buttermilk which meet State
and local standards for such milk, except that, in the meal pattern for
infants (0 to 1 year of age), milk means breast milk or iron-fortified
infant formula. In Alaska, Hawaii, American Samoa, Guam, Puerto Rico,
the Trust Territory of the Pacific Islands, the Northern Mariana
Islands, and the Virgin Islands if a sufficient supply of such types of
fluid milk cannot be obtained, ``milk'' shall include reconstituted or
recombined milk. All milk should contain vitamins A and D at levels
specified by the Food and Drug Administration and be consistent with
State and local standards for such milk.
National disqualified list means the list, maintained by the
Department, of institutions, responsible principals and responsible
individuals, and day care homes disqualified from participation in the
Program.
New institution means an institution applying to participate in the
Program for the first time, or an institution applying to participate in
the Program after a lapse in participation.
Nonpricing program means an institution, child care facility, or
adult day care facility in which there is no separate identifiable
charge made for meals served to participants.
Nonprofit food service means all food service operations conducted
by the institution principally for the benefit of enrolled participants,
from which all of the Program reimbursement funds are used solely for
the operations or improvement of such food service.
Nonresidential means that the same participants are not maintained
in care
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for more than 24 hours on a regular basis.
Notice means a letter sent by certified mail, return receipt (or the
equivalent private delivery service), by facsimile, or by email, that
describes an action proposed or taken by a State agency or FNS with
regard to an institution's Program reimbursement or participation.
Notice also means a letter sent by certified mail, return receipt (or
the equivalent private delivery service), by facsimile, or by email,
that describes an action proposed or taken by a sponsoring organization
with regard to a day care home's participation. The notice must specify
the action being proposed or taken and the basis for the action, and is
considered to be received by the institution or day care home when it is
delivered, sent by facsimile, or sent by email. If the notice is
undeliverable, it is considered to be received by the institution,
responsible principal or responsible individual, or day care home five
days after being sent to the addressee's last known mailing address,
facsimile number, or email address.
OIG means the Office of the Inspector General of the Department.
Operating costs means expenses incurred by an institution in serving
meals to participants under the Program, and allowed by the State agency
financial management instruction.
Outside-school-hours care center means a public or private nonprofit
institution or facility (except day care homes), or a For-profit center
as defined in this section, that is licensed or approved in accordance
with Sec. 226.6(d)(1) to provide organized nonresidential child care
services to children during hours outside of school. Outside-school-
hours care centers may participate in the Program as independent centers
or under the auspices of a sponsoring organization.
Participants means ``Children'' or ``Adult participants'' as defined
in this section.
Personal property means property of any kind except real property.
It may be tangible--having physical existence--or intangible--having no
physical existence such as patents, inventions, and copyrights.
Persons with disabilities means persons of any age who have one or
more disabilities, as determined by the State, and who are enrolled in
an institution or child care facility serving a majority of persons who
are age 18 and under.
Pricing program means an institution, child care facility, or adult
day care facility in which a separate identifiable charge is made for
meals served to participants.
Principal means any individual who holds a management position
within, or is an officer of, an institution or a sponsored center,
including all members of the institution's board of directors or the
sponsored center's board of directors.
Program means the Child and Adult Care Food Program authorized by
section 17 of the National School Lunch Act, as amended.
Program payments means financial assistance in the form of start-up
payments, expansion payments, advance payments, or reimbursement paid or
payable to institutions for operating costs and administrative costs.
Reduced-price meal means a meal served under the Program to a
participant from a family that meets the income standards for reduced-
price school meals. Any separate charge imposed must be less than the
full price of the meal, but in no case more than 40 cents for a lunch or
supper, 30 cents for a breakfast, and 15 cents for a snack. Neither the
participant nor any member of his family may be required to work in the
food service program for a reduced-price meal.
Reimbursement means Federal financial assistance paid or payable to
institutions for Program costs within the rates assigned by the State
agency.
Renewing institution means an institution that is participating in
the Program at the time it submits a renewal application.
Responsible principal or responsible individual means:
(a) A principal, whether compensated or uncompensated, who the State
agency or FNS determines to be responsible for an institution's serious
deficiency;
(b) Any other individual employed by, or under contract with, an
institution or sponsored center, who the State
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agency or FNS determines to be responsible for an institution's serious
deficiency; or
(c) An uncompensated individual who the State agency or FNS
determines to be responsible for an institution's serious deficiency.
Rural area means any geographical area in a county which is not a
part of a Metropolitan Statistical Area or any ``pocket'' within a
Metropolitan Statistical Area which, at the option of the State agency
and with FNSRO concurrence, is determined to be geographically isolated
from urban areas.
SSI participant means an adult participant who receives assistance
under title XVI of the Social Security Act, the Supplemental Security
Income (SSI) for the Aged, Blind and Disabled Program.
School year means a period of 12 calendar months beginning July 1 of
any year and ending June 30 of the following year.
Seriously deficient means the status of an institution or a day care
home that has been determined to be non-compliant in one or more aspects
of its operation of the Program.
Snack means a meal supplement that meets the meal pattern
requirements specified in Sec. 226.20(b)(6) or (c)(4).
Sponsoring organization means a public or nonprofit private
organization that is entirely responsible for the administration of the
food program in:
(a) One or more day care homes;
(b) A child care center, emergency shelter, at-risk afterschool care
center, outside-school-hours care center, or adult day care center which
is a legally distinct entity from the sponsoring organization;
(c) Two or more child care centers, emergency shelters, at-risk
afterschool care centers, outside-school-hours care center, or adult day
care centers; or
(d) Any combination of child care centers, emergency shelters, at-
risk afterschool care centers, outside-school-hours care centers, adult
day care centers, and day care homes. The term ``sponsoring
organization'' also includes an organization that is entirely
responsible for administration of the Program in any combination of two
or more child care centers, at-risk afterschool care centers, adult day
care centers or outside-school-hours care centers, which meet the
definition of For-profit center in this section and are part of the same
legal entity as the sponsoring organization.
Start-up payments means financial assistance made available to a
sponsoring organization for its administrative expenses associated with
developing or expanding a food service program in day care homes and
initiating successful Program operations. These start-up payments may
include administrative expenses associated with outreach and recruitment
of unlicensed family or group day care homes and the allowable
licensing-related expenses of such homes.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Trust Territory of the Pacific Islands, and the Northern Mariana
Islands.
State agency means the State educational agency or any other State
agency that has been designated by the Governor or other appropriate
executive, or by the legislative authority of the State, and has been
approved by the Department to administer the Program within the State or
in States in which FNS administers the Program, FNSRO. This also may
include a State agency other than the existing CACFP State Agency, when
such agency is designated by the Governor of the State to administer
only the adult day care component of the CACFP.
State agency list means an actual paper or electronic list, or the
retrievable paper records, maintained by the State agency, that includes
a synopsis of information concerning seriously deficient institutions
and providers terminated for cause in that State. The list must be made
available to FNS upon request, and must include the following
information:
(a) Institutions determined to be seriously deficient by the State
agency, including the names and mailing addresses of the institutions,
the basis for each serious deficiency determination, and the status of
the institutions as
[[Page 182]]
they move through the possible subsequent stages of corrective action,
proposed termination, suspension, agreement termination, and/or
disqualification, as applicable;
(b) Responsible principals and responsible individuals who have been
disqualified from participation by the State agency, including their
names, mailing addresses, and dates of birth; and
(c) Day care home providers whose agreements have been terminated
for cause by a sponsoring organization in the State, including their
names, mailing addresses, and dates of birth.
State Children's Health Insurance Program (SCHIP) means the State
medical assistance program under title XXI of the Social Security Act (
42 U.S.C. 1397aa et seq.).
Suspended means the status of an institution or day care home that
is temporarily ineligible for participation (including Program
payments).
Suspension review means the review provided, upon the institution's
request, to an institution that has been given a notice of intent to
suspend participation (including Program payments), based on a
determination that the institution has knowingly submitted a false or
fraudulent claim.
Suspension review official means the independent and impartial
official who conducts the suspension review.
Termination for cause means the termination of a day care home's
Program agreement by the sponsoring organization due to the day care
home's violation of the agreement.
TANF recipient means an individual or household receiving assistance
(as defined in 45 CFR 260.31) under a State-administered Temporary
Assistance to Needy Families program.
Termination for convenience means termination of a day care home's
Program agreement by either the sponsoring organization or the day care
home, due to considerations unrelated to either party's performance of
Program responsibilities under the agreement.
Tier I day care home means (a) a day care home that is operated by a
provider whose household meets the income standards for free or reduced-
price meals, as determined by the sponsoring organization based on a
completed free and reduced price application, and whose income is
verified by the sponsoring organization of the home in accordance with
Sec. 226.23(h)(6);
(b) A day care home that is located in an area served by a school
enrolling elementary students in which at least 50 percent of the total
number of children enrolled are certified eligible to receive free or
reduced price meals; or
(c) A day care home that is located in a geographic area, as defined
by FNS based on census data, in which at least 50 percent of the
children residing in the area are members of households which meet the
income standards for free or reduced price meals.
Tier II day care home means a day care home that does not meet the
criteria for a Tier I day care home.
Title XVI means Title XVI of the Social Security Act which
authorizes the Supplemental Security Income for the Aged, Blind, and
Disabled Program--SSI.
Title XIX means Title XIX of the Social Security Act which
authorizes the Grants to States for Medical Assistance Programs--
Medicaid.
Title XX means Title XX of the Social Security Act.
Unannounced review means an on-site review for which no prior
notification is given to the facility or institution.
Verification means a review of the information reported by
institutions to the State agency regarding the eligibility of
participants for free or reduced-price meals, and, in addition, for a
pricing program, confirmation of eligibility for free or reduced-price
benefits under the program. Verification for a pricing program shall
include confirmation of income eligibility and, at State discretion, any
other information required on the application which is defined as
documentation in Sec. 226.2. Such verification may be accomplished by
examining information (e.g., wage stubs, etc.) provided by the household
or other sources of information as specified in Sec. 226.23(h)(2)(iv).
However, if a food stamp, FDPIR or TANF case number is provided for a
child, verification for such child shall include only confirmation that
the child is included in a currently certified food stamp or
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FDPIR household or is a TANF recipient. If a Head Start statement of
income eligibility is provided for a child, verification for such child
shall include only confirmation that the child is a Head Start
participant. For an adult participant, if a food stamp or FDPIR case
number or SSI or Medicaid assistance identification number is provided,
verification for such participant shall include only confirmation that
the participant is included in a currently certified food stamp or FDPIR
household or is a current SSI or Medicaid participant.
Yogurt means commercially coagulated milk products obtained by the
fermentation of specific bacteria, that meet milk fat or milk solid
requirements to which flavoring foods or ingredients may be added. These
products are covered by the Food and Drug Administration's Standard of
Identity for yogurt, lowfat yogurt, and nonfat yogurt, (21 CFR 131.200),
(21 CFR 131.203), (21 CFR 131.206), respectively.
7 CFR part 3015 means the Uniform Federal Assistance Regulations
published by the Department to implement certain policies applicable to
all Department programs. The applicable provisions deal with competition
for discretionary grants and cooperative agreements, costs requiring
prior approval, acknowledgement of Department support in publications
and audiovisuals produced under Department programs, intergovernmental
review of Department programs under Executive Order 12372, and certain
miscellaneous Department requirements.
7 CFR part 3016 means the Department's Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments. 7 CFR part 3016 covers requirements for awards and
subawards to State and local governmental organizations under USDA
programs.
7 CFR part 3019 means the Department's Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Non-Profit Organizations. 7 CFR part
3019 covers requirements for awards and subawards to nongovernmental,
nonprofit organizations.
7 CFR part 3052 means the Department's regulations implementing OMB
Circular A-133. (To obtain the OMB circular referenced in this
definition, see 5 CFR 1310.3.)
[47 FR 36527, Aug. 20, 1982]
Editorial Note: For Federal Register citations affecting Sec.
226.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 226.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program.
(b) Within the States, responsibility for the administration of the
Program shall be in the State agency, except that if FNS has
continuously administered the Program in any State since October 1,
1980, FNS shall continue to administer the Program in that State. A
State in which FNS administers the Program may, upon request to FNS,
assume administration of the Program.
(c) Each State agency desiring to take part in the Program shall
enter into a written agreement with the Department for the
administration of the Program in the State in accordance with the
provisions of this part. This agreement shall cover the operation of the
Program during the period specified therein and may be extended by
consent of both parties.
(d) FNSRO shall, in each State in which it administers the Program,
have available all funds and assume all responsibilities of a State
agency as set forth in this part.
Subpart B_Assistance to States
Sec. 226.4 Payments to States and use of funds.
(a) Availability of funds. For each fiscal year based on funds
provided to the Department, FNS must make funds available to each State
agency to reimburse institutions for their costs in connection with food
service operations, including administrative expenses, under this part.
Funds must be made available in an amount no less than the sum of the
totals obtained under paragraphs (b), (c), (d), (e), (f), (g), and (j)
of this section. However, in any fiscal year, the aggregate amount
[[Page 184]]
of assistance provided to a State under this part must not exceed the
sum of the Federal funds provided by the State to participating
institutions within the State for that fiscal year and any funds used by
the State under paragraphs (j) and (l) of this section.
(b) Center funds. For meals served to participants in child care
centers, adult day care centers and outside-school-hours care centers,
funds shall be made available to each State agency in an amount no less
than the sum of the products obtained by multiplying:
(1) The number of breakfasts served in the Program within the State
to participants from families that do not satisfy the eligibilty
standards for free and reduced-price school meals enrolled in
institutions by the national average payment rate for breakfasts for
such participants under section 4 of the Child Nutrition Act of 1966;
(2) The number of breakfasts served in the Program within the State
to participants from families that satisfy the eligibilty standards for
free school meals enrolled in institutions by the national average
payment rate for free breakfasts under section 4 of the Child Nutrition
Act of 1966;
(3) The number of breakfasts served to participants from families
that satisfy the eligibilty standard for reduced-price school meals
enrolled in institutions by the national average payment rate for
reduced-price school breakfasts under section 4 of the Child Nutrition
Act of 1966;
(4) The number of lunches and suppers served in the Program within
the State by the national average payment rate for lunches under section
4 of the National School Lunch Act. (All lunches and suppers served in
the State are funded under this provision);
(5) The number of lunches and suppers served in the Program within
the State to participants from families that satisfy the eligibilty
standard for free school meals enrolled in institutions by the national
average payment rate for free lunches under section 11 of the National
School Lunch Act;
(6) The number of lunches and suppers served in the Program within
the State to participants from families that satisfy the eligibilty
standard for reduced-price school meals enrolled in institutions by the
national average payment rate for reduced-price lunches under section 11
of the National School Lunch Act;
(7) The number of snacks served in the Program within the State to
participants from families that do not satisfy the eligibilty standards
for free and reduced-price school meals enrolled in institutions by 2.75
cents;
(8) The number of snacks served in the Program within the State to
participants from families that satisfy the eligibilty standard for free
school meals enrolled in institutions by 30 cents;
(9) The number of snacks served in the Program within the State to
participants from families that satisfy the eligibilty standard for
reduced-price school meals enrolled in institutions by 15 cents.
(c) Emergency shelter funds. For meals and snacks served to children
in emergency shelters, funds will be made available to each State agency
in an amount equal to the total calculated by multiplying the number of
meals and snacks served in the Program within the State to such children
by the national average payment rate for free meals and free snacks
under section 11 of the National School Lunch Act.
(d) At-risk afterschool care center funds. For snacks served to
children in at-risk afterschool care centers, funds will be made
available to each State agency in an amount equal to the total
calculated by multiplying the number of snacks served in the Program
within the State to such children by the national average payment rate
for free snacks under section 11 of the National School Lunch Act.
(e) Day care home funds. For meals served to children in day care
homes, funds shall be made available to each State agency in an amount
no less than the sum of products obtained by multiplying:
(1) The number of breakfasts served in the Program within the State
to children enrolled in tier I day care homes by the current tier I day
care home rate for breakfasts;
(2) The number of breakfasts served in the Program within the State
to children enrolled in tier II day care
[[Page 185]]
homes that have been determined eligible for free or reduced price meals
by the current tier I day care home rate for breakfasts;
(3) The number of breakfasts served in the Program within the State
to children enrolled in tier II day care homes that do not satisfy the
eligibility standards for free or reduced price meals, or to children
from whose households applications were not collected, by the current
tier II day care home rate for breakfasts;
(4) The number of lunches and suppers served in the Program within
the State to children enrolled in tier I day care homes by the current
tier I day care home rate for lunches/suppers;
(5) The number of lunches and suppers served in the Program within
the State to children enrolled in tier II day care homes that have been
determined eligible for free or reduced price meals by the current tier
I day care home rate for lunches/suppers;
(6) The number of lunches and suppers served in the Program within
the State to children enrolled in tier II day care homes that do not
satisfy the eligibility standards for free or reduced price meals, or to
children from whose households applications were not collected, by the
current tier II day care home rate for lunches/suppers;
(7) The number of snacks served in the Program within the State to
children enrolled in tier I day care homes by the current tier I day
care home rate for snacks;
(8) The number of snacks served in the Program within the State to
children enrolled in tier II day care homes that have been determined
eligible for free or reduced price meals by the current tier I day care
home rate for snacks; and
(9) The number of snacks served in the Program within the State to
children enrolled in tier II day care homes that do not satisfy the
eligibility standards for free or reduced price meals, or to children
from whose households applications were not collected, by the current
tier II day care home rate for snacks.
(f) Administrative funds. For administrative payments to day care
home sponsoring organizations, funds shall be made available to each
State agency in an amount not less than the product obtained each month
by multiplying the number of day care homes participating under each
sponsoring organization within the State by the applicable rates
specified in Sec. 226.12(a)(3).
(g) Start-up and expansion funds. For start-up and expansion
payments to eligible sponsoring organizations, funds shall be made
available to each State agency in an amount equal to the total amount of
start-up and expansion payments made in the most recent period for which
reports are available for that State or on the basis of estimates by
FNS.
(h) Funding assurance. FNS shall ensure that, to the extent funds
are appropriated, each State has sufficient Program funds available for
providing start-up, expansion and advance payments in accordance with
this part.
(i) Rate adjustments. FNS shall publish a notice in the Federal
Register to announce each rate adjustment. FNS shall adjust the
following rates on the specified dates:
(1) The rates for meals, including snacks, served in tier I and tier
II day care homes shall be adjusted annually, on July 1 (beginning July
1, 1997), on the basis of changes in the series for food at home of the
Consumer Price Index for All Urban Consumers published by the Department
of Labor. Such adjustments shall be rounded to the nearest lower cent
based on changes measured over the most recent twelve-month period for
which data are available. The adjustments shall be computed using the
unrounded rate in effect for the preceding school year.
(2) The rates for meals, including snacks, served in child care
centers, emergency shelters, at-risk afterschool care centers, adult day
care centers and outside-school-hours care centers will be adjusted
annually, on July 1, on the basis of changes in the series for food away
from home of the Consumer Price Index for All Urban Consumers published
by the Department of Labor. Such adjustment must be rounded to the
nearest lower cent, based on changes measured over the most recent
twelve-month period for which data are available. The adjustment to the
rates must be computed using the unrounded rate in effect for the
preceding year.
[[Page 186]]
(3) The rate for administrative payments to day care home sponsoring
organizations shall be adjusted annually, on July 1, on the basis of
changes in the series for all items of the Consumer Price Index for All
Urban Consumers published by the Department of Labor. Such adjustments
shall be made to the nearest dollar based on changes measured over the
most recent twelve-month period for which data are available.
(j) Audit funds. For the expense of conducting audits and reviews
under Sec. 226.8, funds shall be made available to each State agency in
an amount equal to one and one-half percent of the Program reimbursement
provided to institutions within the State during the second fiscal year
preceding the fiscal year for which these funds are to be made
available. In fiscal years 2005-2007, for the expense of conducting
audits and reviews under Sec. 226.8, funds shall be made available to
each State agency in an amount equal to one percent of the Program
reimbursement provided to institutions within the State during the
second fiscal year preceding the fiscal year for which these funds are
to be made available. The amount of assistance provided to a State under
this paragraph in any fiscal year may not exceed the State's
expenditures under Sec. 226.8 during such fiscal year.
(k) Method of funding. FNS shall authorize funds for State agencies
in accordance with 7 CFR part 3016.
(l) Special developmental projects. The State agency may use in
carrying out special developmental projects an amount not to exceed one
percent of Program funds used in the second prior fiscal year. Special
developmental projects shall conform to FNS guidance and be approved in
writing by FNS.
[47 FR 36527, Aug. 20, 1982, as amended at 52 FR 36906, Oct. 2, 1987; 53
FR 52588, Dec. 28, 1988; 62 FR 902, Jan. 7, 1997; 63 FR 9728, Feb. 26,
1998; 69 FR 53536, Sept. 1, 2004; 71 FR 4, Jan. 3, 2006; 71 FR 39518,
July 13, 2006; 72 FR 41603, 41604, July 31, 2007]
Sec. 226.5 Donation of commodities.
(a) USDA foods available under section 6 of this Act, section 416 of
the Agricultural Act of 1949 (7 U.S.C. 1431) or purchased under section
32 of the Act of August 24, 1935 (7 U.S.C. 1431), section 709 of the
Food and Agriculture Act of 1965 (7 U.S.C. 1446a-1), or other authority,
and donated by the Department shall be made available to each State.
(b) The value of such commodities donated to each State for each
school year shall be, at a minimum, the amount obtained by multiplying
the number of reimbursable lunches and suppers served in participating
institutions in that State during the preceding school year by the rate
for commodities established under section 6(e) of the Act for the
current school year. Adjustments shall be made at the end of each school
year to reflect the difference between the number of reimbursable
lunches and suppers served during the preceding year and the number
served during the current year, and subsequent commodity entitlement
shall be based on the adjusted meal counts. At the discretion of FNS,
current-year adjustments may be made for significant variations in the
number of reimbursable meals served. Such current-year adjustments will
not be routine and will only be made for unusual problems encountered in
a State, such as a disaster that necessitates institutional closures for
a prolonged period of time. CACFP State agencies electing to receive
cash-in-lieu of commodities will receive payments based on the number of
reimbursable meals actually served during the current school year.
[47 FR 36527, Aug. 20, 1982, as amended at 62 FR 23618, May 1, 1997]
Subpart C_State Agency Provisions
Sec. 226.6 State agency administrative responsibilities.
(a) State agency personnel. Each State agency must provide
sufficient consultative, technical, and managerial personnel to:
(1) Administer the Program;
(2) Provide sufficient training and technical assistance to
institutions;
(3) Monitor Program performance;
(4) Facilitate expansion of the Program in low-income and rural
areas; and
(5) Ensure effective operation of the Program by participating
institutions.
[[Page 187]]
(b) Program applications and agreements. Each State agency must
establish application review procedures, in accordance with paragraphs
(b)(1) through (b)(3) of this section, to determine the eligibility of
new institutions, renewing institutions, and facilities for which
applications are submitted by sponsoring organizations. The State agency
must enter into written agreements with institutions in accordance with
paragraph (b)(4) of this section.
(1) Application procedures for new institutions. Each State agency
must establish application procedures to determine the eligibility of
new institutions under this part. At a minimum, such procedures must
require that institutions submit information to the State agency in
accordance with paragraph (f) of this section. For new private nonprofit
and proprietary child care institutions, such procedures must also
include a pre-approval visit by the State agency to confirm the
information in the institution's application and to further assess its
ability to manage the Program. The State agency must establish factors,
consistent with Sec. 226.16(b)(1), that it will consider in determining
whether a new sponsoring organization has sufficient staff to perform
required monitoring responsibilities at all of its sponsored facilities.
As part of the review of the sponsoring organization's management plan,
the State agency must determine the appropriate level of staffing for
each sponsoring organization, consistent with the staffing range of
monitors set forth at Sec. 226.16(b)(1) and the factors it has
established. The State agency must ensure that each new sponsoring
organization applying for participation after July 29, 2002 meets this
requirement. In addition, the State agency's application review
procedures must ensure that the following information is included in a
new institution's application:
(i) Participant eligibility information. Centers must submit current
information on the number of enrolled participants who are eligible for
free, reduced-price and paid meals;
(ii) Enrollment information. Sponsoring organizations of day care
homes must submit current information on:
(A) The total number of children enrolled in all homes in the
sponsorship;
(B) An assurance that day care home providers' own children whose
meals are claimed for reimbursement in the Program are eligible for free
or reduced-price meals;
(C) The total number of tier I and tier II day care homes that it
sponsors;
(D) The total number of children enrolled in tier I day care homes;
(E) The total number of children enrolled in tier II day care homes;
and
(F) The total number of children in tier II day care homes that have
been identified as eligible for free or reduced-price meals;
(iii) Nondiscrimination statement. Institutions must submit their
nondiscrimination policy statement and a media release, unless the State
agency has issued a Statewide media release on behalf of all
institutions;
(iv) Management plan. Sponsoring organizations must submit a
complete management plan that includes:
(A) Detailed information on the organization's management and
administrative structure;
(B) A list or description of the staff assigned to Program
monitoring, in accordance with the requirements set forth at Sec.
226.16(b)(1);
(C) An administrative budget that includes projected CACFP
administrative earnings and expenses;
(D) The procedures to be used by the organization to administer the
Program in, and disburse payments to, the child care facilities under
its sponsorship; and
(E) For sponsoring organizations of family day care homes, a
description of the system for making tier I day care home
determinations, and a description of the system of notifying tier II day
care homes of their options for reimbursement;
(v) Budget. An institution must submit a budget that the State
agency must review in accordance with Sec. 226.7(g);
(vi) Documentation of licensing/approval. All centers and family day
care homes must document that they meet Program licensing/approval
requirements;
(vii) Documentation of tax-exempt status. All private nonprofit
institutions
[[Page 188]]
must document their tax-exempt status;
(viii) At-risk afterschool care centers. Institutions (independent
at-risk afterschool care centers and sponsoring organizations of at-risk
afterschool care centers) must submit documentation sufficient to
determine that each at-risk afterschool care center meets the program
eligibility requirements in Sec. 226.17a(a), and sponsoring
organizations must submit documentation that each sponsored at-risk
afterschool care center meets the area eligibility requirements in Sec.
226.17a(i).
(ix) Documentation of for-profit center eligibility. Institutions
must document that each for-profit center for which application is made
meets the definition of a For-profit center, as set forth at Sec.
226.2;
(x) Preference for commodities/cash-in-lieu of commodities.
Institutions must state their preference to receive commodities or cash-
in-lieu of commodities;
(xi) Providing benefits to unserved facilities or participants.--(A)
Criteria. The State agency must develop criteria for determining whether
a new sponsoring organization's participation will help ensure the
delivery of benefits to otherwise unserved facilities or participants,
and must disseminate these criteria to new sponsoring organizations when
they request information about applying to the Program; and
(B) Documentation. The new sponsoring organization must submit
documentation that its participation will help ensure the delivery of
benefits to otherwise unserved facilities or participants in accordance
with the State agency's criteria;
(xii) Presence on National disqualified list. If an institution or
one of its principals is on the National disqualified list and submits
an application, the State agency must deny the application. If a
sponsoring organization submits an application on behalf of a facility,
and either the facility or any of its principals is on the National
disqualified list, the State agency must deny the application;
(xiii) Ineligibility for other publicly funded programs.--(A)
General. A State agency is prohibited from approving an institution's
application if, during the past seven years, the institution or any of
its principals have been declared ineligible for any other publicly
funded program by reason of violating that program's requirements.
However, this prohibition does not apply if the institution or the
principal has been fully reinstated in, or determined eligible for, that
program, including the payment of any debts owed;
(B) Certification. Institutions must submit:
(1) A statement listing the publicly funded programs in which the
institution and its principals have participated in the past seven
years; and
(2) A certification that, during the past seven years, neither the
institution nor any of its principals have been declared ineligible to
participate in any other publicly funded program by reason of violating
that program's requirements; or
(3) In lieu of the certification, documentation that the institution
or the principal previously declared ineligible was later fully
reinstated in, or determined eligible for, the program, including the
payment of any debts owed; and
(C) Follow-up. If the State agency has reason to believe that the
institution or its principals were determined ineligible to participate
in another publicly funded program by reason of violating that program's
requirements, the State agency must follow up with the entity
administering the publicly funded program to gather sufficient evidence
to determine whether the institution or its principals were, in fact,
determined ineligible;
(xiv) Information on criminal convictions. (A) A State agency is
prohibited from approving an institution's application if the
institution or any of its principals has been convicted of any activity
that occurred during the past seven years and that indicated a lack of
business integrity. A lack of business integrity includes fraud,
antitrust violations, embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack of business integrity as defined
by the State agency; and
[[Page 189]]
(B) Institutions must submit a certification that neither the
institution nor any of its principals has been convicted of any activity
that occurred during the past seven years and that indicated a lack of
business integrity. A lack of business integrity includes fraud,
antitrust violations, embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack of business integrity as defined
by the State agency;
(xv) Certification of truth of applications and submission of names
and addresses. Institutions must submit a certification that all
information on the application is true and correct, along with the name,
mailing address, and date of birth of the institution's executive
director and chairman of the board of directors;
(xvi) Outside employment policy. Sponsoring organizations must
submit an outside employment policy. The policy must restrict other
employment by employees that interferes with an employee's performance
of Program-related duties and responsibilities, including outside
employment that constitutes a real or apparent conflict of interest.
Sponsoring organizations that are participating on July 29, 2002, must
submit an outside employment policy not later than September 27, 2002.
The policy will be effective unless disapproved by the State agency;
(xvii) Bond. Sponsoring organizations applying for initial
participation on or after June 20, 2000, must submit a bond, if such
bond is required by State law, regulation, or policy. If the State
agency requires a bond for sponsoring organizations pursuant to State
law, regulation, or policy, the State agency must submit a copy of that
requirement and a list of sponsoring organizations posting a bond to the
appropriate FNSRO on an annual basis; and
(xviii) Compliance with performance standards. Each new institution
must submit information sufficient to document that it is financially
viable, is administratively capable of operating the Program in
accordance with this part, and has internal controls in effect to ensure
accountability. To document this, any new institution must demonstrate
in its application that it is capable of operating in conformance with
the following performance standards. The State agency must only approve
the applications of those new institutions that meet these performance
standards, and must deny the applications of those new institutions that
do not meet the standards.
(A) Performance Standard 1--Financial viability and financial
management. The new institution must be financially viable. Program
funds must be expended and accounted for in accordance with the
requirements of this part, FNS Instruction 796-2 (``Financial Management
in the Child and Adult Care Food Program''), and parts 3015, 3016, and
3019 of this title. To demonstrate financial viability, the new
institution must document that it meets the following criteria:
(1) Description of need/recruitment. A new sponsoring organization
must demonstrate in its management plan that its participation will help
ensure the delivery of Program benefits to otherwise unserved facilities
or participants, in accordance with criteria developed by the State
agency pursuant to paragraph (b)(1)(x) of this section. A new sponsoring
organization must demonstrate that it will use appropriate practices for
recruiting facilities, consistent with paragraph (p) of this section and
any State agency requirements;
(2) Fiscal resources and financial history. A new institution must
demonstrate that it has adequate financial resources to operate the
CACFP on a daily basis, has adequate sources of funds to withstand
temporary interruptions in Program payments and/or fiscal claims against
the institution, and can document financial viability (for example,
through audits, financial statements, etc.); and
(3) Budgets. Costs in the institution's budget must be necessary,
reasonable, allowable, and appropriately documented;
(B) Performance Standard 2--Administrative capability. The new
institution must be administratively capable. Appropriate and effective
management practices must be in effect to ensure
[[Page 190]]
that the Program operates in accordance with this part. To demonstrate
administrative capability, the new institution must document that it
meets the following criteria:
(1) Has an adequate number and type of qualified staff to ensure the
operation of the Program in accordance with this part;
(2) If a sponsoring organization, documents in its management plan
that it employs staff sufficient to meet the ratio of monitors to
facilities, taking into account the factors that the State agency will
consider in determining a sponsoring organization's staffing needs, as
set forth in Sec. 226.16(b)(1); and
(3) If a sponsoring organization, has Program policies and
procedures in writing that assign Program responsibilities and duties,
and ensure compliance with civil rights requirements; and
(C) Performance Standard 3--Program accountability. The new
institution must have internal controls and other management systems in
effect to ensure fiscal accountability and to ensure that the Program
will operate in accordance with the requirements of this part. To
demonstrate Program accountability, the new institution must document
that it meets the following criteria:
(1) Board of directors. Has adequate oversight of the Program by its
governing board of directors;
(2) Fiscal accountability. Has a financial system with management
controls specified in writing. For new sponsoring organizations, these
written operational policies must assure:
(i) Fiscal integrity and accountability for all funds and property
received, held, and disbursed;
(ii) The integrity and accountability of all expenses incurred;
(iii) That claims will be processed accurately, and in a timely
manner;
(iv) That funds and property are properly safeguarded and used, and
expenses incurred, for authorized Program purposes; and
(v) That a system of safeguards and controls is in place to prevent
and detect improper financial activities by employees;
(3) Recordkeeping. Maintains appropriate records to document
compliance with Program requirements, including budgets, accounting
records, approved budget amendments, and, if a sponsoring organization,
management plans and appropriate records on facility operations;
(4) Sponsoring organization operations. If a new sponsoring
organization, documents in its management plan that it will:
(i) Provide adequate and regular training of sponsoring organization
staff and sponsored facilities in accordance with Sec. 226.15(e)(12)
and (e)(14) and Sec. 226.16(d)(2) and (d)(3);
(ii) Perform monitoring in accordance with Sec. 226.16(d)(4), to
ensure that sponsored facilities accountably and appropriately operate
the Program;
(iii) If a sponsor of family day care homes, accurately classify day
care homes as tier I or tier II in accordance with Sec. 226.15(f); and
(iv) Have a system in place to ensure that administrative costs
funded from Program reimbursements do not exceed regulatory limits set
forth at Sec. Sec. 226.12(a) and 226.16(b)(1); and
(5) Meal service and other operational requirements. Independent
centers and facilities will follow practices that result in the
operation of the Program in accordance with the meal service,
recordkeeping, and other operational requirements of this part. These
practices must be documented in the independent center's application or
in the sponsoring organization's management plan and must demonstrate
that independent centers or sponsored facilities will:
(i) Provide meals that meet the meal patterns set forth in Sec.
226.20;
(ii) Comply with licensure or approval requirements set forth in
paragraph (d) of this section;
(iii) Have a food service that complies with applicable State and
local health and sanitation requirements;
(iv) Comply with civil rights requirements;
(v) Maintain complete and appropriate records on file; and
(vi) Claim reimbursement only for eligible meals.
[[Page 191]]
(2) Application procedures for renewing institutions. Each State
agency must establish application procedures to determine the
eligibility of renewing institutions under this part. Renewing
institutions must not be required to submit a free and reduced-price
policy statement or a nondiscrimination statement unless they make
substantive changes to either statement. The State agency must require
each renewing institution participating in the Program to reapply for
participation at a time determined by the State agency, except that no
institution may be allowed to participate for less than 12 or more than
36 calendar months under an existing application, except when the State
agency determines that unusual circumstances warrant reapplication in
less than 12 months. The State agency must establish factors, consistent
with Sec. 226.16(b)(1), that it will consider in determining whether a
renewing sponsoring organization has sufficient staff to perform
required monitoring responsibilities at all of its sponsored facilities.
As part of the review of the renewing sponsoring organization's
management plan, the State agency must determine the appropriate level
of staffing for the sponsoring organization, consistent with the
staffing range of monitors set forth at Sec. 226.16(b)(1) and the
factors it has established. The State agency must ensure that each
currently participating sponsoring organization meets this requirement
no later than July 29, 2003. At a minimum, the application review
procedures established by the State agency must require that renewing
institutions submit information to the State agency in accordance with
paragraph (f) of this section. In addition, the State agency's
application review procedures must ensure that the following information
is included in a renewing institution's application:
(i) Management plan. For renewing sponsoring organizations, a
complete management plan that meets the requirements of paragraphs
(b)(1)(iv), (b)(1)(v), (f)(1)(vi), and (f)(3)(i) of this section and
Sec. 226.7(g);
(ii) Presence on National disqualified list. A renewing institution
is prohibited from submitting a renewal application if it or any of its
principals is currently on the National disqualified list. If such an
institution submits an application, the State agency must deny the
application. A renewing sponsoring organization is also prohibited from
submitting a renewal application on behalf of a facility if the facility
or any of its principals is on the National disqualified list. If a
renewing sponsoring organization submits an application on behalf of
such a facility, the State agency must deny the facility's application;
(iii) Ineligibility for other publicly funded programs.--(A)
General. A State agency is prohibited from approving a renewing
institution's application if, during the past seven years, the
institution or any of its principals have been declared ineligible for
any other publicly funded program by reason of violating that program's
requirements. However, this prohibition does not apply if the
institution or the principal has been fully reinstated in, or determined
eligible for, that program, including the payment of any debts owed;
(B) Certification. Renewing institutions must submit:
(1) A statement listing the publicly funded programs in which the
institution and its principals have participated in the past seven
years; and
(2) A certification that, during the past seven years, neither the
institution nor any of its principals have been declared ineligible to
participate in any other publicly funded program by reason of violating
that program's requirements; or
(3) In lieu of the certification, documentation that the institution
or the principal previously declared ineligible was later fully
reinstated in, or determined eligible for, the program, including the
payment of any debts owed; and
(C) Follow-up. If the State agency has reason to believe that the
renewing institution or any of its principals were determined ineligible
to participate in another publicly funded program by reason of violating
that program's requirements, the State agency must follow up with the
entity administering the publicly funded program to gather sufficient
evidence to determine whether the institution or its principals were, in
fact, determined ineligible;
[[Page 192]]
(iv) Information on criminal convictions. (A) A State agency is
prohibited from approving a renewing institution's application if the
institution or any of its principals have been convicted of any activity
that occurred during the past seven years and that indicated a lack of
business integrity. A lack of business integrity includes fraud,
antitrust violations, embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack of business integrity as defined
by the State agency; and
(B) Renewing institutions must submit a certification that neither
the institution nor any of its principals have been convicted of any
activity that occurred during the past seven years and that indicated a
lack of business integrity. A lack of business integrity includes fraud,
antitrust violations, embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack of business integrity as defined
by the State agency;
(v) Certification of truth of applications and submission of names
and addresses. Renewing institutions must submit a certification that
all information on the application is true and correct, along with the
name, mailing address, and date of birth of the institution's executive
director and chairman of the board of directors;
(vi) Outside employment policy. Renewing sponsoring organizations
must submit an outside employment policy. The policy must restrict other
employment by employees that interferes with an employee's performance
of Program-related duties and responsibilities, including outside
employment that constitutes a real or apparent conflict of interest.
Sponsoring organizations that are participating on July 29, 2002, must
submit an outside employment policy not later than September 27, 2002.
The policy will be effective unless disapproved by the State agency;
(vii) Compliance with performance standards. Each renewing
institution must submit information sufficient to document that it is
financially viable, is administratively capable of operating the Program
in accordance with this part, and has internal controls in effect to
ensure accountability. To document this, any renewing institution must
demonstrate in its application that it is capable of operating in
conformance with the following performance standards. The State agency
must only approve the applications of those renewing institutions that
meet these performance standards, and must deny the applications of
those that do not meet the standards.
(A) Performance Standard 1--Financial viability and financial
management. The renewing institution must be financially viable. Program
funds must be expended and accounted for in accordance with the
requirements of this part, FNS Instruction 796-2 (``Financial Management
in the Child and Adult Care Food Program''), and parts 3015, 3016 and
3019 of this title. To demonstrate financial viability, the renewing
institution must document that it meets the following criteria:
(1) Description of need/recruitment. A renewing sponsoring
organization must demonstrate that it will use appropriate practices for
recruiting facilities, consistent with paragraph (p) of this section and
any State agency requirements;
(2) Fiscal resources and financial history. A renewing institution
must demonstrate that it has adequate financial resources to operate the
CACFP on a daily basis, has adequate sources of funds to withstand
temporary interruptions in Program payments and/or fiscal claims against
the institution, and can document financial viability (for example,
through audits, financial statements, etc.); and
(3) Budgets. Costs in the renewing institution's budget must be
necessary, reasonable, allowable, and appropriately documented;
(B) Performance Standard 2--Administrative capability. The renewing
institution must be administratively capable. Appropriate and effective
management practices must be in effect to ensure that the Program
operates in accordance with this part. To demonstrate
[[Page 193]]
administrative capability, the renewing institution must document that
it meets the following criteria:
(1) Has an adequate number and type of qualified staff to ensure the
operation of the Program in accordance with this part;
(2) If a sponsoring organization, documents in its management plan
that it employs staff sufficient to meet the ratio of monitors to
facilities, taking into account the factors that the State agency will
consider in determining a sponsoring organization's staffing needs, as
set forth in Sec. 226.16(b)(1); and
(3) If a sponsoring organization, has Program policies and
procedures in writing that assign Program responsibilities and duties,
and ensure compliance with civil rights requirements; and
(C) Performance Standard 3--Program accountability. The renewing
institution must have internal controls and other management systems in
effect to ensure fiscal accountability and to ensure that the Program
operates in accordance with the requirements of this part. To
demonstrate Program accountability, the renewing institution must
document that it meets the following criteria:
(1) Board of directors. Has adequate oversight of the Program by its
governing board of directors;
(2) Fiscal accountability. Has a financial system with management
controls specified in writing. For sponsoring organizations, these
written operational policies must assure:
(i) Fiscal integrity and accountability for all funds and property
received, held, and disbursed;
(ii) The integrity and accountability of all expenses incurred;
(iii) That claims are processed accurately, and in a timely manner;
(iv) That funds and property are properly safeguarded and used, and
expenses incurred, for authorized Program purposes; and
(v) That a system of safeguards and controls is in place to prevent
and detect improper financial activities by employees;
(3) Recordkeeping. Maintains appropriate records to document
compliance with Program requirements, including budgets, accounting
records, approved budget amendments, and, if a sponsoring organization,
management plans and appropriate records on facility operations;
(4) Sponsoring organization operations. A renewing sponsoring
organization must document in its management plan that it will:
(i) Provide adequate and regular training of sponsoring organization
staff and sponsored facilities in accordance with Sec. 226.15(e)(12)
and (e)(14) and Sec. 226.16(d)(2) and (d)(3);
(ii) Perform monitoring in accordance with Sec. 226.16(d)(4), to
ensure that sponsored facilities accountably and appropriately operate
the Program;
(iii) If a sponsor of family day care homes, accurately classify day
care homes as tier I or tier II in accordance with Sec. 226.15(f); and
(iv) Have a system in place to ensure that administrative costs
funded from Program reimbursements do not exceed regulatory limits set
forth at Sec. Sec. 226.12(a) and 226.16(b)(1); and
(5) Meal service and other operational requirements. All independent
centers and facilities must follow practices that result in the
operation of the Program in accordance with the meal service,
recordkeeping, and other operational requirements of this part. These
practices must be documented in the independent center's application or
in the sponsoring organization's management plan and must demonstrate
that independent centers or sponsored facilities:
(i) Provide meals that meet the meal patterns set forth in Sec.
226.20;
(ii) Comply with licensure or approval requirements set forth in
paragraph (d) of this section;
(iii) Have a food service that complies with applicable State and
local health and sanitation requirements;
(iv) Comply with civil rights requirements;
(v) Maintain complete and appropriate records on file; and
(vi) Claim reimbursement only for eligible meals.
(3) State agency notification requirements. Any new or renewing
institution applying for participation in the Program must be notified
in writing of approval or disapproval by the State agency, within 30
calendar days of the
[[Page 194]]
State agency's receipt of a complete application. Whenever possible,
State agencies should provide assistance to institutions that have
submitted an incomplete application. Any disapproved applicant
institution or family day care home must be notified of the reasons for
its disapproval and its right to appeal under paragraph (k) or (l),
respectively, of this section.
(4) Program agreements. (i) The State agency must require each
institution that has been approved for participation in the Program to
enter into an agreement governing the rights and responsibilities of
each party. The State agency may allow a renewing institution to amend
its existing Program agreement in lieu of executing a new agreement. The
existence of a valid agreement, however, does not eliminate the need for
an institution to comply with the reapplication and related provisions
at paragraphs (b) and (f) of this section.
(ii) State agencies may elect to enter into permanent agreements
with institutions. However, if they elect not to enter into permanent
agreements with institutions, the length of time during which such
agreements are in effect must be no less than one and no more than three
years, except that:
(A) The State agency and an institution that is a school food
authority must enter into a single permanent agreement for all child
nutrition programs administered by the school food authority and the
State agency;
(B) If a State agency denies the application of a renewing
institution, it must temporarily extend its agreement with that
institution in accordance with paragraph (c)(2)(iii)(D) of this section;
(C) If the State agency determines that unusual circumstances
warrant reapplication in less than 12 months, the State agency may
approve the agreement with the institution for a period of less than one
year.
(iii) Any agreement that extends from one fiscal year into the
following fiscal year must stipulate that, in subsequent years, the
agreement is in effect contingent upon the availability of Program
funds. However, this does not limit the State agency's ability to
terminate the agreement in accordance with paragraph (c) of this
section.
(iv) The Program agreement must provide that the institution accepts
final financial and administrative responsibility for management of a
proper, efficient, and effective food service, and will comply with all
requirements under this part. In addition, the agreement must state that
the sponsor must comply with all requirements of title VI of the Civil
Rights Act of 1964, title IX of the Education Amendments of 1972,
section 504 of the Rehabilitation Act of 1973, the Age Discrimination
Act of 1975 and the Department's regulations concerning
nondiscrimination (parts 15, 15a and 15b of this title), including
requirements for racial and ethnic participation data collection, public
notification of the nondiscrimination policy, and reviews to assure
compliance with such policy, to the end that no person may, on the
grounds of race, color, national origin, sex, age, or disability, be
excluded from participation in, be denied the benefits of, or be
otherwise subjected to discrimination under, the Program.
(v) The Program agreement must also notify the institution of the
right of the State agency, the Department, and other State or Federal
officials to make announced or unannounced reviews of their operations
during the institution's normal hours of child or adult care operations,
and that anyone making such reviews must show photo identification that
demonstrates that they are employees of one of these entities.
(c) Denial of applications and termination of agreements--(1) Denial
of a new institution's application--(i) General. If a new institution's
application does not meet all of the requirements in paragraph (b) of
this section and in Sec. Sec. 226.15(b) and 226.16(b), the State agency
must deny the application. If, in reviewing a new institution's
application, the State agency determines that the institution has
committed one or more serious deficiency listed in paragraph (c)(1)(ii)
of this section, the State agency must initiate action to:
(A) Deny the new institution's application; and
[[Page 195]]
(B) Disqualify the new institution and the responsible principals
and responsible individuals (e.g., the person who signs the
application).
(ii) List of serious deficiencies for new institutions. The list of
serious deficiencies is not identical for each category of institution
(new, renewing, participating) because the type of information likely to
be available to the State agency is different, depending on whether the
State agency is reviewing a new or renewing institution's application or
is conducting a review of a participating institution. Serious
deficiencies for new institutions are:
(A) Submission of false information on the institution's
application, including but not limited to a determination that the
institution has concealed a conviction for any activity that occurred
during the past seven years and that indicates a lack of business
integrity. A lack of business integrity includes fraud, antitrust
violations, embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, receiving stolen
property, making false claims, obstruction of justice, or any other
activity indicating a lack of business integrity as defined by the State
agency; or
(B) Any other action affecting the institution's ability to
administer the Program in accordance with Program requirements.
(iii) Serious deficiency notification procedures for new
institutions. If the State agency determines that a new institution has
committed one or more serious deficiency listed in paragraph (c)(1)(ii)
of this section, the State agency must use the following procedures to
provide the institution and the responsible principals and responsible
individuals with notice of the serious deficiency(ies) and an
opportunity to take corrective action.
(A) Notice of serious deficiency. The State agency must notify the
institution's executive director and chairman of the board of directors
that the institution has been determined to be seriously deficient. The
notice must identify the responsible principals and responsible
individuals (e.g., for new institutions, the person who signed the
application) and must be sent to those persons as well. The State agency
may specify in the notice different corrective action, and time periods
for completing the corrective action, for the institution and the
responsible principals and responsible individuals. At the same time the
notice is issued, the State agency must add the institution to the State
agency list, along with the basis for the serious deficiency
determination, and provide a copy of the notice to the appropriate
FNSRO. The notice must also specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct the serious deficiency(ies);
(3) The time allotted to correct the serious deficiency(ies) in
accordance with paragraph (c)(4) of this section.
(4) That the serious deficiency determination is not subject to
administrative review;
(5) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time will result in denial of the
institution's application and the disqualification of the institution
and the responsible principals and responsible individuals; and
(6) That the State agency will not pay any claims for reimbursement
for eligible meals served or allowable administrative expenses incurred
until the State agency has approved the institution's application and
the institution has signed a Program agreement.
(B) Successful corrective action.
(1) If corrective action has been taken to fully and permanently
correct the serious deficiency(ies) within the allotted time and to the
State agency's satisfaction, the State agency must:
(i) notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the State agency has rescinded its serious deficiency
determination; and
(ii) offer the new institution the opportunity to resubmit its
application. If the new institution resubmits its application, the State
agency must complete its review of the application within 30 days after
receiving a complete and correct application.
(2) If corrective action is complete for the institution but not for
all of the responsible principals and responsible
[[Page 196]]
individuals (or vice versa), the State agency must:
(i) continue with the actions (as set forth in paragraph
(c)(1)(iii)(C) of this section) against the remaining parties;
(ii) at the same time the notice is issued, the State agency must
also update the State agency list to indicate that the serious
deficiency(ies) has(ve) been corrected and provide a copy of the notice
to the appropriate FNSRO; and
(iii) if the new institution has corrected the serious
deficiency(ies), offer it the opportunity to resubmit its application.
If the new institution resubmits its application, the State agency must
complete its review of the application within 30 days after receiving a
complete and correct application.
(C) Application denial and proposed disqualification. If timely
corrective action is not taken to fully and permanently correct the
serious deficiency(ies), the State agency must notify the institution's
executive director and chairman of the board of directors, and the
responsible principals and responsible individuals, that the
institution's application has been denied. At the same time the notice
is issued, the State agency must also update the State agency list and
provide a copy of the notice to the appropriate FNSRO. The notice must
also specify:
(1) That the institution's application has been denied and the State
agency is proposing to disqualify the institution and the responsible
principals and responsible individuals;
(2) The basis for the actions; and
(3) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the application denial
and proposed disqualifications.
(D) Program payments. The State agency is prohibited from paying any
claims for reimbursement from a new institution for eligible meals
served or allowable administrative expenses incurred until the State
agency has approved its application and the institution and State agency
have signed a Program agreement.
(E) Disqualification. When the time for requesting an administrative
review expires or when the administrative review official upholds the
State agency's denial and proposed disqualifications, the State agency
must notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals that the institution and the responsible principal and
responsible individuals have been disqualified. At the same time the
notice is issued, the State agency must also update the State agency
list and provide a copy of the notice and the mailing address and date
of birth for each responsible principal and responsible individual to
the appropriate FNSRO.
(2) Denial of a renewing institution's application.--(i) General. If
a renewing institution's application does not meet all of the
requirements in paragraph (b) of this section and in Sec. Sec.
226.15(b) and 226.16(b), the State agency must deny the application. If,
in reviewing a renewing institution's application, the State agency
determines that the institution has committed one or more serious
deficiency listed in paragraph (c)(2)(ii) of this section, the State
agency must initiate action to deny the renewing institution's
application and initiate action to disqualify the renewing institution
and the responsible principals and responsible individuals.
(ii) List of serious deficiencies for renewing institutions. The
list of serious deficiencies is not identical for each category of
institution (new, renewing, participating) because the type of
information likely to be available to the State agency is different,
depending on whether the State agency is reviewing a new or renewing
institution's application or is conducting a review of a participating
institution. Serious deficiencies for renewing institutions are:
(A) Submission of false information on the institution's
application, including but not limited to a determination that the
institution has concealed a conviction for any activity that occurred
during the past seven years and that indicates a lack of business
integrity. A lack of business integrity includes fraud, antitrust
violations, embezzlement, theft, forgery, bribery, falsification or
destruction of records,
[[Page 197]]
making false statements, receiving stolen property, making false claims,
obstruction of justice, or any other activity indicating a lack of
business integrity as defined by the State agency;
(B) Failure to operate the Program in conformance with the
performance standards set forth in paragraphs (b)(1)(xviii) and
(b)(2)(vii) of this section;
(C) Failure to comply with the bid procedures and contract
requirements of applicable Federal procurement regulations;
(D) Use of a food service management company that is in violation of
health codes;
(E) Failure by a sponsoring organization of day care homes to
properly classify day care homes as tier I or tier II in accordance with
Sec. 226.15(f);
(F) Failure by a sponsoring organization to properly train or
monitor sponsored facilities in accordance with Sec. 226.16(d);
(G) Failure to perform any of the other financial and administrative
responsibilities required by this part;
(H) Failure to properly implement and administer the day care home
termination and administrative review provisions set forth at paragraph
(l) of this section and Sec. 226.16(l); or
(I) any other action affecting the institution's ability to
administer the Program in accordance with Program requirements.
(iii) Serious deficiency notification procedures for renewing
institutions. If the State agency determines that a renewing institution
has committed one or more serious deficiency listed in paragraph
(c)(2)(ii) of this section, the State agency must use the following
procedures to provide the institution and the responsible principals and
responsible individuals notice of the serious deficiency(ies) and an
opportunity to take corrective action.
(A) Notice of serious deficiency. The State agency must notify the
institution's executive director and chairman of the board of directors
that the institution has been determined to be seriously deficient. The
notice must identify the responsible principals and responsible
individuals and must be sent to those persons as well. The State agency
may specify in the notice different corrective action, and time periods
for completing the corrective action, for the institution and the
responsible principals and responsible individuals. At the same time the
notice is issued, the State agency must add the institution to the State
agency list, along with the basis for the serious deficiency
determination, and provide a copy of the notice to the appropriate
FNSRO. The notice must also specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct the serious deficiency(ies);
(3) The time allotted to correct the serious deficiency(ies) in
accordance with paragraph (c)(4) of this section;
(4) That the serious deficiency determination is not subject to
administrative review.
(5) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time will result in the State
agency's denial of the institution's application, the proposed
termination of the institution's agreement (if the State agency has
temporarily extended the agreement pursuant to paragraph (c)(2)(iii)(D)
of this section) and the proposed disqualification of the institution
and the responsible principals and responsible individuals; and
(6) That the institution's voluntary termination of its agreement
with the State agency after having been notified that it is seriously
deficient will still result in the instituion's formal termination by
the State agency and placement of the institution and its responsible
principals and responsible individuals on the National disqualified
list.
(B) Successful corrective action. (1) If corrective action has been
taken to fully and permanently correct the serious deficiency(ies)
within the allotted time and to the State agency's satisfaction, the
State agency must:
(i) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the State agency has rescinded its serious deficiency
determination; and
(ii) Offer the renewing institution the opportunity to resubmit its
application. If the renewing institution resubmits its application, the
State agency
[[Page 198]]
must complete its review of the application within 30 days after
receiving a complete and correct application.
(2) If corrective action is complete for the institution but not for
all of the responsible principals and responsible individuals (or vice
versa), the State agency must:
(i) continue with the actions (as set forth in paragraph
(c)(2)(iii)(C) of this section) against the remaining parties;
(ii) at the same time the notice is issued, the State agency must
also update the State agency list to indicate that the serious
deficiency(ies) has(ve) been corrected and provide a copy of the notice
to the appropriate FNSRO; and
(iii) if the renewing institution has corrected the serious
deficiency(ies), offer it the opportunity to resubmit its application.
If the renewing institution resubmits its application, the State agency
must complete its review of the application within 30 days after
receiving a complete and correct application.
(C) Application denial and proposed disqualification. If timely
corrective action is not taken to fully and permanently correct the
serious deficiency(ies), the State agency must notify the institution's
executive director and chairman of the board of directors, and the
responsible principals and responsible individuals, that the
institution's application has been denied. At the same time the notice
is issued, the State agency must update the State agency list and
provide a copy of the notice to the appropriate FNSRO. The notice must
also specify:
(1) That the institution's application has been denied and the State
agency is proposing to terminate the institution's temporarily-extended
agreement and to disqualify the institution and the responsible
principals and responsible individuals;
(2) The basis for the actions;
(3) That, if the institution voluntarily terminates its agreement
after receiving the notice of the proposed termination, the institution
and the responsible principals and responsible individuals will be
disqualified;
(4) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the application denial
and proposed disqualifications; and
(5) That the institution may continue to participate in the Program
and receive Program reimbursement for eligible meals served and
allowable administrative costs incurred until its administrative review
is completed.
(D) Program payments and extended agreement. If the renewing
institution's agreement expires before the end of the time allotted for
corrective action, and/or the conclusion of any administrative review
requested by the renewing institution:
(1) The State agency must temporarily extend its current agreement
with the renewing institution and continue to pay any valid unpaid
claims for reimbursement for eligible meals served and allowable
administrative expenses incurred; and
(2) The actions set forth in paragraph (c)(2)(iii)(D)91) of this
section must be taken either until the serious deficiency(ies) is
corrected or until the institution's agreement is terminated, including
the period of any administrative review;
(E) Agreement termination and disqualification. When the time for
requesting an administrative review expires or when the administrative
review official upholds the State agency's denial of the institution's
application, the proposed termination, and the proposed
disqualifications, the State agency must:
(1) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the temporarily-extended agreement has been terminated
and that the institution and the responsible principals and responsible
individuals have been disqualified;
(2) Update the State agency list at the time such notice is issued;
and
(3) Provide a copy of the notice and the mailing address and date of
birth for each responsible principal and responsible individual to the
appropriate FNSRO.
(3) Termination of a participating institution's agreement. (i)
General. If the State agency holds an agreement with an institution
operating in more than one State that has been disqualified
[[Page 199]]
from the Program by another State agency and placed on the National
disqualified list, the State agency must terminate the institution's
agreement effective no later than 45 days of the date of the
institution's disqualification by the other State agency. At the same
time the notice of termination is issued, the State agency must add the
institution to the State agency list and indicate that the institution's
agreement has been terminated and provide a copy of the notice to the
appropriate FNSRO. If the State agency determines that a participating
institution has committed one or more serious deficiency listed in
paragraph (c)(3)(ii) of this section, the State agency must initiate
action to terminate the agreement of a participating institution and
initiate action to disqualify the institution and any responsible
principals and responsible individuals.
(ii) List of serious deficiencies for participating institutions.
The list of serious deficiencies is not identical for each category of
institution (new, renewing, participating) because the type of
information likely to be available to the State agency is different,
depending on whether the State agency is reviewing a new or renewing
institution's application or is conducting a review of a participating
institution. Serious deficiencies for participating institutions are:
(A) Submission of false information on the institution's
application, including but not limited to a determination that the
institution has concealed a conviction for any activity that occurred
during the past seven years and that indicates a lack of business
integrity. A lack of business integrity includes fraud, antitrust
violations, embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, receiving stolen
property, making false claims, obstruction of justice, or any other
activity indicating a lack of business integrity as defined by the State
agency;
(B) Permitting an individual who is on the National disqualified
list to serve in a principal capacity with the institution or, if a
sponsoring organization, permitting such an individual to serve as a
principal in a sponsored center or as a day care home;
(C) Failure to operate the Program in conformance with the
performance standards set forth in paragraphs (b)(1)(xviii) and
(b)(2)(vii) of this section;
(D) Failure to comply with the bid procedures and contract
requirements of applicable Federal procurement regulations;
(E) Failure to return to the State agency any advance payments that
exceeded the amount earned for serving eligible meals, or failure to
return disallowed start-up or expansion payments;
(F) Failure to maintain adequate records;
(G) Failure to adjust meal orders to conform to variations in the
number of participants;
(H) Claiming reimbursement for meals not served to participants;
(I) Claiming reimbursement for a significant number of meals that do
not meet Program requirements;
(J) Use of a food service management company that is in violation of
health codes;
(K) Failure of a sponsoring organization to disburse payments to its
facilities in accordance with the regulations at Sec. 226.16(g) and (h)
or in accordance with its management plan;
(L) Claiming reimbursement for meals served by a for-profit child
care center or a for-profit outside-school-hours care center during a
calendar month in which less than 25 percent of the children in care
(enrolled or licensed capacity, whichever is less) were eligible for
free or reduced-price meals or were title XX beneficiaries;
(M) Claiming reimbursement for meals served by a for-profit adult
day care center during a calendar month in which less than 25 percent of
its enrolled adult participants were title XIX or title XX
beneficiaries;
(N) Failure by a sponsoring organization of day care homes to
properly classify day care homes as tier I or tier II in accordance with
Sec. 226.15(f);
(O) Failure by a sponsoring organization to properly train or
monitor sponsored facilities in accordance with Sec. 226.16(d);
(P) Use of day care home funds by a sponsoring organization to pay
for the
[[Page 200]]
sponsoring organization's administrative expenses;
(Q) Failure to perform any of the other financial and administrative
responsibilities required by this part;
(R) Failure to properly implement and administer the day care home
termination and administrative review provisions set forth at paragraph
(l) of this section and Sec. 226.16(l);
(S) The fact the institution or any of the institution's principals
have been declared ineligible for any other publicly funded program by
reason of violating that program's requirements. However, this
prohibition does not apply if the institution or the principal has been
fully reinstated in, or is now eligible to participate in, that program,
including the payment of any debts owed;
(T) Conviction of the institution or any of its principals for any
activity that occurred during the past seven years and that indicates a
lack of business integrity. A lack of business integrity includes fraud,
antitrust violations, embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, obstruction of justice,
or any other activity indicating a lack of business integrity as defined
by the State agency; or
(U) Any other action affecting the institution's ability to
administer the Program in accordance with Program requirements.
(iii) Serious deficiency notification procedures for participating
institutions. If the State agency determines that a participating
institution has committed one or more serious deficiency listed in
paragraph (c)(3)(ii) of this section, the State agency must use the
following procedures to provide the institution and the responsible
principals and responsible individuals notice of the serious
deficiency(ies) and an opportunity to take corrective action. However,
if the serious deficiency(ies) constitutes an imminent threat to the
health or safety of participants, or the institution has engaged in
activities that threaten the public health or safety, the State agency
must follow the procedures in paragraph (c)(5)(i) of this section
instead of the procedures below. Further, if the serious deficiency is
the submission of a false or fraudulent claim, in addition to the
procedures below, the State agency may suspend the institution's
participation in accordance with paragraph (c)(5)(ii) of this section.
(A) Notice of serious deficiency. The State agency must notify the
institution's executive director and chairman of the board of directors
that the institution has been determined seriously deficient. The notice
must identify the responsible principals and responsible individuals and
must be sent to those persons as well. The State agency may specify in
the notice different corrective action and time periods for completing
the corrective action for the institution and the responsible principals
and responsible individuals. At the same time the notice is issued, the
State agency must add the institution to the State agency list, along
with the basis for the serious deficiency determination, and provide a
copy of the notice to the appropriate FNSRO. The notice must also
specify:
(1) The serious deficiency(ies);
(2) The actions to be taken to correct the serious deficiency(ies);
(3) The time allotted to correct the serious deficiency(ies) in
accordance with paragraph (c)(4) of this section;
(4) That the serious deficiency determination is not subject to
administrative review.
(5) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time will result in the State
agency's proposed termination of the institution's agreement and the
proposed disqualification of the institution and the responsible
principals and responsible individuals; and
(6) That the institution's voluntary termination of its agreement
with the State agency after having been notified that it is seriously
deficient will still result in the instituion's formal termination by
the State agency and placement of the institution and its responsible
principals and responsible individuals on the National disqualified
list.
(B) Successful corrective action. (1) If corrective action has been
taken to fully and permanently correct the serious deficiency(ies)
within the allotted
[[Page 201]]
time and to the State agency's satisfaction, the State agency must:
(i) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the State agency has rescinded its serious deficiency
determination; and
(ii) Offer the renewing institution the opportunity to resubmit its
application. If the renewing institution resubmits its application, the
State agency must complete its review of the application within 30 days
after receiving a complete and correct application.
(2) If corrective action is complete for the institution but not for
all of the responsible principals and responsible individuals (or vice
versa), the State agency must:
(i) Continue with the actions (as set forth in paragraph
(c)(3)(iii)(C) of this section) against the remaining parties;
(ii) At the same time the notice is issued, the State agency must
also update the State agency list to indicate that the serious
deficiency(ies) has(ve) been corrected and provide a copy of the notice
to the appropriate FNSRO; and
(iii) If the renewing institution has corrected the serious
deficiency(ies), offer it the opportunity to resubmit its application.
If the renewing institution resubmits its application, the State agency
must complete its review of the application within 30 days after
receiving a complete and correct application.
(C) Proposed termination and proposed disqualification. If timely
corrective action is not taken to fully and permanently correct the
serious deficiency(ies), the State agency must notify the institution's
executive director and chairman of the board of directors, and the
responsible principals and responsible individuals, that the State
agency is proposing to terminate the institution's agreement and to
disqualify the institution and the responsible principals and
responsible individuals. At the same time the notice is issued, the
State agency must also update the State agency list and provide a copy
of the notice to the appropriate FNSRO. The notice must also specify:
(1) That the State agency is proposing to terminate the
institution's agreement and to disqualify the institution and the
responsible principals and responsible individuals;
(2) The basis for the actions;
(3) That, if the institution voluntarily terminates its agreement
after receiving the notice of proposed termination, the institution and
the responsible principals and responsible individuals will be
disqualified.
(4) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the application denial
and proposed disqualifications; and
(5) That, unless participation has been suspended, the institution
may continue to participate and receive Program reimbursement for
eligible meals served and allowable administrative costs incurred until
its administrative review is completed.
(D) Program payments. Unless participation has been suspended, the
State agency must continue to pay any valid unpaid claims for
reimbursement for eligible meals served and allowable administrative
expenses incurred until the serious deficiency(ies) is corrected or the
institution's agreement is terminated, including the period of any
administrative review.
(E) Agreement termination and disqualification. When the time for
requesting an administrative review expires or when the administrative
review official upholds the State agency's proposed termination and
disqualifications, the State agency must:
(1) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the institution's agreement has been terminated and
that the institution and the responsible principals and responsible
individuals have been disqualified;
(2) Update the State agency list at the time such notice is issued;
and
(3) Provide a copy of the notice and the mailing address and date of
birth for each responsible principal and responsible individual to the
appropriate FNSRO.
(4) Corrective action timeframes--(i) General. Except as noted in
this paragraph (c)(4), the State agency is prohibited from allowing more
than 90 days for corrective action from the date the
[[Page 202]]
institution receives the serious deficiency notice.
(ii) Unlawful practices. If the State agency determines that the
institution has engaged in unlawful practices, submitted false or
fraudulent claims or other information to the State agency, or been
convicted of or concealed a criminal background, the State agency is
prohibited from allowing more than 30 days for corrective action.
(iii) Long-term changes. For serious deficiencies requiring the
long-term revision of management systems or processes, the State agency
may permit more than 90 days to complete the corrective action as long
as a corrective action plan is submitted to and approved by the State
agency within 90 days (or such shorter deadline as the State agency may
establish). The corrective action must include milestones and a definite
completion date that the State agency will monitor. The determination of
serious deficiency will remain in effect until the State agency
determines that the serious deficiency(ies) has(ve) been fully and
permanently corrected within the allotted time.
(5) Suspension of an institution's participation. A State agency is
prohibited from suspending an institution's participation (including all
Program payments) except for the reasons set forth in this paragraph
(c)(5).
(i) Public health or safety--(A) General. If State or local health
or licensing officials have cited an institution for serious health or
safety violations, the State agency must immediately suspend the
institution's Program participation, initiate action to terminate the
institution's agreement, and initiate action to disqualify the
institution and the responsible principals and responsible individuals
prior to any formal action to revoke the institution's licensure or
approval. If the State agency determines that there is an imminent
threat to the health or safety of participants at an institution, or
that the institution has engaged in activities that threaten the public
health or safety, the State agency must immediately notify the
appropriate State or local licensing and health authorities and take
action that is consistent with the recommendations and requirements of
those authorities. An imminent threat to the health or safety of
participants and engaging in activities that threaten the public health
or safety constitute serious deficiencies; however, the State agency
must use the procedures in this paragraph (c)(5)(i) (instead of the
procedures in paragraph (c)(3) of this section) to provide the
institution notice of the suspension of participation, serious
deficiency, proposed termination of the institution's agreement, and
proposed disqualification of the responsible principals and responsible
individuals.
(B) Notice of suspension, serious deficiency, proposed termination,
and proposed disqualification. The State agency must notify the
institution's executive director and chairman of the board of directors
that the institution's participation (including Program payments) has
been suspended, that the institution has been determined to be seriously
deficient, and that the State agency proposes to terminate the
institution's agreement and to disqualify the institution and the
responsible principals and responsible individuals. The notice must also
identify the responsible principals and responsible individuals and must
be sent to those persons as well. At the same time this notice is sent,
the State agency must add the institution and the responsible principals
and responsible individuals to the State agency list, along with the
basis for the serious deficiency determination and provide a copy of the
notice to the appropriate FNSRO. The notice must also specify:
(1) That the State agency is suspending the institution's
participation (including Program payments), proposing to terminate the
institution's agreement, and proposing to disqualify the institution and
the responsible principals and responsible individuals;
(2) The serious deficiency(ies);
(3) That, if the institution voluntary terminates its agreement with
the State agency after having been notified of the proposed termination,
the institution and the responsible principals and responsible
individuals will be disqualified;
(4) That the serious deficiency determination is not subject to
administrative review;
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(5) The procedures for seeking an administrative review (consistent
with paragraph (k) of this section) of the suspension, proposed
termination, and proposed disqualifications; and
(6) That, if the administrative review official overturns the
suspension, the institution may claim reimbursement for eligible meals
served and allowable administrative costs incurred during the suspension
period.
(C) Agreement termination and disqualification. When the time for
requesting an administrative review expires or when the administrative
review official upholds the State agency's proposed termination and
disqualifications, the State agency must:
(1) Notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that the institution's agreement has been terminated and
that the institution and the responsible principals and responsible
individuals have been disqualified;
(2) update the State agency list at the time such notice is issued;
and
(3) provide a copy of the notice and the mailing address and date of
birth for each responsible principal and responsible individual to the
appropriate FNSRO.
(D) Program payments. The State agency is prohibited from paying any
claims for reimbursement from a suspended institution. However, if the
suspended institution prevails in the administrative review of the
proposed termination, the State agency must pay any claims for
reimbursement for eligible meals served and allowable administrative
costs incurred during the suspension period.
(ii) False or fraudulent claims--(A) General. If the State agency
determines that an institution has knowingly submitted a false or
fraudulent claim, the State agency may initiate action to suspend the
institution's participation and must initiate action to terminate the
institution's agreement and initiate action to disqualify the
institution and the responsible principals and responsible individuals
(in accordance with paragraph (c)(3) of this section). The submission of
a false or fraudulent claim constitutes a serious deficiency as set
forth in paragraph (c)(3)(ii) of this section, which lists serious
deficiencies for participating institutions. If the State agency wishes
to suspend the institution's participation, it must use the following
procedures to issue the notice of proposed suspension of participation
at the same time it issues the serious deficiency notice, which must
include the information described in paragraph (c)(3)(iii)(A) of this
section.
(B) Proposed suspension of participation. If the State agency
decides to propose to suspend an institution's participation due to the
institution's submission of a false or fraudulent claim, it must notify
the institution's executive director and chairman of the board of
directors that the State agency intends to suspend the institution's
participation (including all Program payments) unless the institution
requests a review of the proposed suspension. At the same time the
notice is issued, the State agency must also update the State agency
list and provide a copy of the notice to the appropriate FNSRO. The
notice must identify the responsible principals and responsible
individuals and must be sent to those persons as well. The notice must
also specify:
(1) That the State agency is proposing to suspend the institution's
participation;
(2) That the proposed suspension is based on the institution's
submission of a false or fraudulent claim, as described in the serious
deficiency notice;
(3) The effective date of the suspension (which may be no earlier
than 10 days after the institution receives the suspension notice);
(4) The name, address and telephone number of the suspension review
official who will conduct the suspension review; and
(5) That if the institution wishes to have a suspension review, it
must request a review and submit to the suspension review official
written documentation opposing the proposed suspension within 10 days of
the institution's receipt of the notice.
(C) Suspension review. If the institution requests a review of the
State agency's proposed suspension of participation, the suspension
review must
[[Page 204]]
be heard by a suspension review official who must:
(1) Be an independent and impartial person other than, and not
accountable to, any person involved in the decision to initiate
suspension proceedings;
(2) Immediately notify the State agency that the institution has
contested the proposed suspension and must obtain from the State agency
its notice of proposed suspension of participation, along with all
supporting documentation; and
(3) Render a decision on suspension of participation within 10 days
of the deadline for receiving the institution's documentation opposing
the proposed suspension.
(D) Suspension review decision. If the suspension review official
determines that the State agency's proposed suspension is not
appropriate, the State agency is prohibited from suspending
participation. If the suspension review official determines, based on a
preponderance of the evidence, that the State agency's action was
appropriate, the State agency must suspend the institution's
participation (including all Program payments), effective on the date of
the suspension review decision. The State agency must notify the
institution's executive director and chairman of the board of directors,
and the responsible principals and responsible individuals, that the
institution's participation has been suspended. At the same time the
notice is issued, the State agency must also update the State agency
list and provide a copy of the notice to the appropriate FNSRO. The
notice must also specify:
(1) That the State agency is suspending the institution's
participation (including Program payments);
(2) The effective date of the suspension (the date of the suspension
review decision);
(3) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the suspension; and
(4) That if the administrative review official overturns the
suspension, the institution may claim reimbursement for eligible meals
served and allowable administrative costs incurred during the suspension
period.
(E) Program payments. A State agency is prohibited from paying any
claims for reimbursement submitted by a suspended institution. However,
if the institution suspended for the submission of false or fraudulent
claims is a sponsoring organization, the State agency must ensure that
sponsored facilities continue to receive reimbursement for eligible
meals served during the suspension period. If the suspended institution
prevails in the administrative review of the proposed termination, the
State agency must pay any valid unpaid claims for reimbursement for
eligible meals served and allowable administrative costs incurred during
the suspension period.
(F) Maximum time for suspension. Under no circumstances may the
suspension of participation remain in effect for more than 120 days
following the suspension review decision.
(6) FNS determination of serious deficiency. (i) General. FNS may
determine independently that a participating institution has committed
one or more serious deficiency listed in paragraph (c)(3)(ii) of this
section, which lists serious deficiencies for participating
institutions.
(ii) Serious deficiency notification procedures. If FNS determines
that an institution has committed one or more serious deficiency listed
in paragraph (c)(3)(ii) of this section (the list of serious
deficiencies for participating institutions), FNS will use the following
procedures to provide the institution and the responsible principals and
responsible individuals with notice of the serious deficiency(ies) and
an opportunity to take corrective action.
(A) Notice of serious deficiency. FNS will notify the institution's
executive director and chairman of the board of directors that the
institution has been found to be seriously deficient. The notice will
identify the responsible principals and responsible individuals and will
be sent to them as well. FNS may specify in the notice different
corrective action and time periods for completing the corrective action,
for the institution and the responsible principals and responsible
individuals. The notice will also specify:
(1) The serious deficiency(ies);
[[Page 205]]
(2) The actions to be taken to correct the serious deficiency(ies);
(3) The time allotted to correct the serious deficiency(ies) in
accordance with paragraph (c)(4) of this section;
(4) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time, or the institution's voluntary
termination of its agreement(s) with any State agency after having been
notified that it is seriously deficient, will result in the proposed
disqualification of the institution and the responsible principals and
responsible individuals and the termination of its agreement(s) with all
State agencies; and
(5) That the serious deficiency determination is not subject to
administrative review.
(B) Suspension of participation. If FNS determines that there is an
imminent threat to the health or safety of participants at an
institution, or that the institution has engaged in activities that
threaten the public health or safety, any State agency that holds an
agreement with the institution must suspend the participation of the
institution. If FNS determines that the institution has submitted a
false or fraudulent claim, it may require any State agency that holds an
agreement with the institution to initiate action to suspend the
institution's participation for false or fraudulent claims in accordance
with paragraph (c)(5)(ii) of this section (which deals with an
institution's suspension by a State agency for submission of false or
fraudulent claims). In both cases, FNS will provide the State agency the
information necessary to support these actions and, in the case of a
false and fraudulent claim, will provide an individual to serve as the
suspension review official if requested by the State agency.
(C) Successful corrective action. (1) If corrective action has been
taken to fully and permanently correct the serious deficiency(ies)
within the allotted time and to FNS's satisfaction, FNS will notify the
institution's executive director and chairman of the board of directors,
and the responsible principals and responsible individuals, that it has
rescinded its serious deficiency determination; and
(2) If corrective action is complete for the institution but not for
all of the responsible principals and responsible individuals (or vice
versa), FNS will continue with the actions (as set forth in paragraph
(c)(6)(ii)(D) of this section) against the remaining parties.
(D) Proposed disqualification. If timely corrective action is not
taken to fully and permanently correct the serious deficiency(ies), FNS
will notify the institution's executive director and chairman of the
board of directors, and the responsible principals and responsible
individuals, that FNS is proposing to disqualify them. The notice will
also specify:
(1) That FNS is proposing to disqualify the institution and the
responsible principals and responsible individuals;
(2) The basis for the actions;
(3) That, if the institution seeks to voluntarily terminate its
agreement after receiving the notice of proposed disqualification, the
institution and the responsible principals and responsible individuals
will be disqualified;
(4) The procedures for seeking an administrative review (in
accordance with paragraph (k) of this section) of the proposed
disqualifications;
(5) That unless participation has been suspended, the institution
may continue to participate and receive Program reimbursement for
eligible meals served and allowable administrative costs incurred until
its administrative review is completed; and
(6) That if the institution does not prevail in the administrative
review, any State agency holding an agreement with the institution will
be required to terminate that agreement and the institution is
prohibited from seeking an administrative review of the termination of
the agreement by the State agency(ies).
(E) Disqualification. When the time for requesting an administrative
review expires or when the administrative review official upholds FNS's
proposed disqualifications, FNS will notify the institution's executive
director and chairman of the board of directors, and the responsible
principals and responsible individuals, that the institution and the
responsible principal or
[[Page 206]]
responsible individual have been disqualified.
(F) Program payments. If the State agency holds an agreement with an
institution that FNS has determined to be seriously deficient, the State
agency must continue to pay any valid unpaid claims for reimbursement
for eligible meals served and allowable administrative expenses incurred
until the serious deficiency(ies) is corrected or the State agency
terminates the institution's agreement, including the period of any
administrative review, unless participation has been suspended.
(G) Required State agency action. (1) Disqualified institutions. If
the State agency holds an agreement with an institution that FNS
determines to be seriously deficient and subsequently disqualifies, the
State agency must terminate the institution's agreement effective no
later than 45 days after the date of the institution's disqualification
by FNS. As noted in paragraph (k)(3)(iv) of this section, the
termination is not subject to administrative review. At the same time
the notice of termination is issued, the State agency must add the
institution to the State agency list and provide a copy of the notice to
the appropriate FNSRO.
(2) Disqualified principals. If the State agency holds an agreement
with an institution whose principal FNS determines to be seriously
deficient and subsequently disqualifies, the State agency must determine
the institution to be seriously deficient and initiate action to
terminate and disqualify the institution in accordance with the
procedures in paragraph (c)(3) of this section. The State agency must
initiate these actions no later than 45 days after the date of the
principal's disqualification by FNS.
(7) National disqualified list--(i) Maintenance and availability of
list. FNS will maintain the National disqualified list and make it
available to all State agencies and all sponsoring organizations.
(ii) Effect on institutions. No organization on the National
disqualified list may participate in the Program as an institution. As
noted in paragraphs (b)(1)(xii) and (b)(2)(ii) of this section, the
State agency must deny the application of a new or renewing institution
if the institution is on the National disqualified list. In addition, as
noted in paragraphs (c)(3)(i) and (c)(6)(ii)(G)(1) of this section, the
State agency must terminate the agreement of any participating
institution that is disqualified by another State agency or by FNS.
(iii) Effect on sponsored centers. No organization on the National
disqualified list may participate in the Program as a sponsored center.
As noted in Sec. 226.16(b) and paragraphs (b)(1)(xii) and (b)(2)(ii) of
this section, a sponsoring organization is prohibited from submitting an
application on behalf of a sponsored facility (and a State agency is
prohibited from approving such an application) if the facility is on the
National disqualified list.
(iv) Effect on individuals. No individual on the National
disqualified list may serve as a principal in any institution or
facility or as a day care home provider.
(A) Principal for an institution or a sponsored facility. As noted
in paragraphs (b)(1)(xii) and (b)(2)(ii) of this section, the State
agency must deny the application of a new or renewing institution if any
of the institution's principals is on the National disqualified list. As
noted in paragraphs (c)(3)(ii)(B) and (c)(6)(ii)(G)(2) of this section,
the State agency must declare an institution seriously deficient and
initiate action to terminate the institution's agreement and disqualify
the institution if the institution permits an individual who is on the
National disqualified list to serve in a principal capacity for the
institution or one of its facilities.
(B) Principal for a sponsored facility. As noted in Sec. 226.16(b)
and paragraphs (b)(1)(xii) and (b)(2)(ii) of this section, a sponsoring
organization is prohibited from submitting an application on behalf of a
sponsored facility (or a State agency from approving such an
application) if any of the facility's principals are on the National
disqualified list.
(C) Serving as a day care home. As noted in Sec. 226.16(b) and
paragraphs (b)(1)(xii) and (b)(2)(ii) of this section, a sponsoring
organization is prohibited from submitting an application on behalf of a
sponsored facility (and a State agency is prohibited from approving
[[Page 207]]
such an application) if the facility is on the National disqualified
list.
(v) Removal of institutions, principals, and individuals from the
list. Once included on the National disqualified list, an institution
and responsible principals and responsible individuals remain on the
list until such time as FNS, in consultation with the appropriate State
agency, determines that the serious deficiency(ies) that led to their
placement on the list has(ve) been corrected, or until seven years have
elapsed since they were disqualified from participation. However, if the
institution, principal or individual has failed to repay debts owed
under the Program, they will remain on the list until the debt has been
repaid.
(vi) Removal of day care homes from the list. Once included on the
National disqualified list, a day care home will remain on the list
until such time as the State agency determines that the serious
deficiency(ies) that led to its placement on the list has(ve) been
corrected, or until seven years have elapsed since its agreement was
terminated for cause. However, if the day care home has failed to repay
debts owed under the Program, it will remain on the list until the debt
has been repaid.
(8) State agency list. (i) Maintenance of the State agency list. The
State agency must maintain a State agency list (in the form of an actual
paper or electronic list or retrievable paper records). The list must be
made available to FNS upon request, and must include the following
information:
(A) Institutions determined to be seriously deficient by the State
agency, including the names and mailing addresses of the institutions
and the status of the institutions as they move through the possible
subsequent stages of corrective action, proposed termination,
suspension, agreement termination, and/or disqualification, as
applicable;
(B) Responsible principals and individuals who have been
disqualified from participation by the State agency, including their
names, mailing addresses, and dates of birth; and
(C) Day care home providers whose agreements have been terminated
for cause by a sponsoring organization in the State, including their
names, mailing addresses, and dates of birth.
(ii) Referral of disqualified day care homes to FNS. Within 10 days
of receiving a notice of termination and disqualification from a
sponsoring organization, the State agency must provide the appropriate
FNSRO the name, mailing address, and date of birth of each day care home
provider whose agreement is terminated for cause on or after July 29,
2002.
(iii) Prior lists of disqualified day care homes. If on July 29,
2002 the State agency maintains a list of day care homes that have been
disqualified from participation, the State agency may continue to
prohibit participation by those day care homes. However, the State
agency must remove a day care home from its prior list no later than the
time at which the State agency determines that the serious
deficiency(ies) that led to the day care home's placement on the list
has(ve) been corrected or July 29, 2009 (unless the day care home has
failed to repay debts owed under the Program). If the day care home has
failed to repay its debt, the State agency may keep the day care home on
its prior list until the debt has been repaid.
(d) Licensing/approval for institutions or facilities providing
child care. This section prescribes State agency responsibilities to
ensure that child care centers, at-risk afterschool care centers,
outside-school-hours care centers, and day care homes meet the
licensing/approval criteria set forth in this part. Emergency shelters
are exempt from licensing/approval requirements contained in this
section but must meet the requirements of paragraph (d)(2) to be
eligible to participate in the Program. Independent centers shall submit
such documentation to the State agency on their own behalf.
(1) General. Each State agency must establish procedures to annually
review information submitted by institutions to ensure that all
participating child care centers, at-risk afterschool care centers,
outside-school hours care centers, and day care homes:
(i) Are licensed or approved by Federal, State, or local
authorities, provided that institutions that are approved for Federal
programs on the
[[Page 208]]
basis of State or local licensing are not eligible for the Program if
their licenses lapse or are terminated; or
(ii) Are complying with applicable procedures to renew licensing or
approval in situations where the State agency has no information that
licensing or approval will be denied; or
(iii) Demonstrate compliance with applicable State or local child
care standards to the State agency, if licensing is not available; or
(iv) Demonstrate compliance with CACFP child care standards to the
State agency, if licensing or approval is not available; or
(v) If Federal, State or local licensing or approval is not
otherwise required, at-risk afterschool care centers and outside-school-
hours care centers must meet State or local health and safety standards.
When State or local health and safety standards have not been
established, State agencies are encouraged to work with appropriate
State and local officials to create such standards. Meeting these
standards will remain a precondition for any afterschool center's
eligibility for CACFP nutrition benefits.
(2) Health and safety requirements for emergency shelters. To be
eligible to participate in the Program, emergency shelters must meet
applicable State or local health and safety standards.
(3) CACFP child care standards. When licensing or approval is not
available, independent child care centers, and sponsoring organizations
on behalf of their child care centers or day care homes, may elect to
demonstrate compliance, annually, with the following CACFP child care
standards or other standards specified in paragraph (d)(4) of this
section:
(i) Staff/child ratios. (A) Day care homes provide care for no more
than 12 children at any one time. One home caregiver is responsible for
no more than 6 children ages 3 and above, or no more than 5 children
ages 0 and above. No more than 2 children under the age of 3 are in the
care of 1 caregiver. The home provider's own children who are in care
and under the age of 14 are counted in the maximum ratios of caregivers
to children.
(B) Child care centers do not fall below the following staff/child
ratios:
(1) For children under 6 weeks of age--1:1;
(2) For children ages 6 weeks up to 3 years--1:4;
(3) For children ages 3 years up to 6 years--1:6;
(4) For children ages 6 years up to 10 years--1:15; and
(5) For children ages 10 and above--1:20.
(ii) Nondiscrimination. Day care services are available without
discrimination on the basis of race, color, national origin, sex, age,
or handicap.
(iii) Safety and sanitation. (A) A current health/sanitation permit
or satisfactory report of an inspection conducted by local authorities
within the past 12 months shall be submitted.
(B) A current fire/building safety permit or satisfactory report of
an inspection conducted by local authorities within the past 12 months
shall be submitted.
(C) Fire drills are held in accordance with local fire/building
safety requirements.
(iv) Suitability of facilities. (A) Ventilation, temperature, and
lighting are adequate for children's safety and comfort.
(B) Floors and walls are cleaned and maintained in a condition safe
for children.
(C) Space and equipment, including rest arrangements for preschool
age children, are adequate for the number of age range of participating
children.
(v) Social services. Independent centers, and sponsoring
organizations in coordination with their facilities, have procedures for
referring families of children in care to appropriate local health and
social service agencies.
(vi) Health services. (A) Each child is observed daily for
indications of difficulties in social adjustment, illness, neglect, and
abuse, and appropriate action is initiated.
(B) A procedure is established to ensure prompt notification of the
parent or guardian in the event of a child's illness or injury, and to
ensure prompt medical treatment in case of emergency.
[[Page 209]]
(C) Health records, including records of medical examinations and
immunizations, are maintained for each enrolled child. (Not applicable
to day care homes.)
(D) At least one full-time staff member is currently qualified in
first aid, including artificial respiration techniques. (Not applicable
to day care homes.)
(E) First aid supplies are available.
(F) Staff members undergo initial and periodic health assessments.
(vii) Staff training. The institution provides for orientation and
ongoing training in child care for all caregivers.
(viii) Parental involvement. Parents are afforded the opportunity to
observe their children in day care.
(ix) Self-evaluation. The institution has established a procedure
for periodic self-evaluation on the basis of CACFP child care standards.
(4) Alternate approval procedures. Each State agency shall establish
procedures to review information submitted by institutions for centers
or homes for which licensing or approval is not available in order to
establish eligibility for the Program. Licensing or approval is not
available when (i) no Federal, State, or local licensing/approval
standards have been established for child care centers, or day care
homes; or (ii) no mechanism exists to determine compliance with
licensing/approval standards. In these situations, independent centers,
and sponsoring organizations on behalf of their facilities, may choose
to demonstrate compliance with either CACFP child care standards,
applicable State child care standards, or applicable local child care
standards. State agencies shall provide information about applicable
State child care standards and CACFP child care standards to
institutions, but may require institutions electing to demonstrate
compliance with applicable local child care standards to identify and
submit these standards. The State agency may permit independent centers,
and sponsoring organizations on behalf of their facilities, to submit
self-certification forms, and may grant approval without first
conducting a compliance review at the center or facility. But the State
agency shall require submission of health/sanitation and fire/safety
permits or certificates for all independent centers and facilities
seeking alternate child care standards approval. Compliance with
applicable child care standards are subject to review in accordance with
Sec. 226.6(o).
(e) Licensing/approval for adult day care centers. This paragraph
prescribes State agency responsibilities to ensure that adult day care
centers meet the licensing/approval criteria set forth in this part.
Sponsoring organizations shall submit to the State agency documentation
that facilities under their jurisdiction are in compliance with
licensing/approval requirements. Independent adult day care centers
shall submit such documentation to the State agency on their own behalf.
Each State agency shall establish procedures to annually review
information submitted by institutions to ensure that all participating
adult day care centers either:
(1) Are licensed or approved by Federal, State or local authorities,
provided that institutions which are approved for Federal programs on
the basis of State or local licensing shall not be eligible for the
Program if their licenses lapse or are terminated; or
(2) Are complying with applicable procedures to renew licensing or
approval in situations where the State agency has no information that
licensing or approval will be denied.
(f) Miscellaneous responsibilities. State agencies must require
institutions to comply with the applicable provisions of this part and
must provide or collect the information specified in this paragraph (f).
(1) Annual responsibilities. In addition to its other
responsibilities under this part, each State agency must annually:
(i) Inform institutions that are pricing programs of their
responsibility to ensure that free and reduced-price meals are served to
participants unable to pay the full price;
(ii) Provide to all institutions a copy of the income standards to
be used by institutions for determining the eligibility of participants
for free and reduced-price meals under the Program;
(iii) Require centers to submit current eligibility information on
enrolled participants, in order to calculate a
[[Page 210]]
blended rate or claiming percentage in accordance with Sec. 226.9(b);
(iv) Require each sponsoring organization to submit an
administrative budget with sufficiently detailed information concerning
projected CACFP administrative earnings and expenses, as well as other
non-Program funds to be used in Program administration, for the State
agency to determine the allowability, necessity, and reasonableness of
all proposed expenditures, and to assess the sponsoring organization's
capability to manage Program funds. The administrative budget must
demonstrate that the sponsoring organization will expend and account for
funds in accordance with regulatory requirements, FNS Instruction 796-2
(``Financial Management in the Child and Adult Care Food Program''),
parts 3015, 3016, and 3019 of this title, and applicable Office of
Management and Budget circulars. In addition, the administrative budget
submitted by a sponsor of centers must demonstrate that the
administrative costs to be charged to the Program do not exceed 15
percent of the meal reimbursements estimated or actually earned during
the budget year, unless the State agency grants a waiver in accordance
with Sec. 226.7(g);
(v) Require each institution to issue a media release, unless the
State agency has issued a Statewide media release on behalf of all its
institutions;
(vi) Require each independent center to provide information
concerning its licensing/approval status, and require each sponsoring
organization to provide information concerning the licensing/approval
status of its facilities, unless the State agency has other means of
confirming the licensing/approval status of any independent center or
facility providing care;
(vii) Require each sponsoring organization to submit verification
that all facilities under its sponsorship have adhered to the training
requirements set forth in Program regulations; and
(viii) Comply with the following requirements for tiering of day
care homes:
(A) Coordinate with the State agency that administers the National
School Lunch Program (the NSLP State agency) to ensure the receipt of a
list of elementary schools in the State in which at least one-half of
the children enrolled are certified eligible to receive free or reduced-
price meals. The State agency must provide the list of elementary
schools to sponsoring organizations of day care homes by February 15
each year unless the NSLP State agency has elected to base data for the
list on a month other than October. In that case, the State agency must
provide the list to sponsoring organizations of day care homes within 15
calendar days of its receipt from the NSLP State agency.
(B) For tiering determinations of day care homes that are based on
school or census data, the State agency must ensure that sponsoring
organizations of day care homes use the most recent available data, as
described in Sec. 226.15(f).
(C) For tiering determinations of day care homes that are based on
the provider's household income, the State agency must ensure that
sponsoring organizations annually determine the eligibility of each day
care home, as described in Sec. 226.15(f).
(D) The State agency must provide all sponsoring organizations of
day care homes in the State with a listing of State-funded programs,
participation in which by a parent or child will qualify a meal served
to a child in a tier II home for the tier I rate of reimbursement.
(E) The State agency must require each sponsoring organization of
family day care homes to submit to the State agency a list of family day
care home providers receiving tier I benefits on the basis of their
participation in the Food Stamp Program. Within 30 days of receiving
this list, the State agency will provide this list to the State agency
responsible for the administration of the Food Stamp Program.
(ix) Comply with the following requirements for determining the
eligibility of at-risk afterschool care centers:
(A) Coordinate with the NSLP State agency to ensure the receipt of a
list of elementary, middle, and high schools in the State in which at
least one-half of the children enrolled are certified eligible to
receive free or reduced-price meals. The State agency must provide the
list of elementary, middle, and
[[Page 211]]
high schools to independent at-risk afterschool care centers and
sponsoring organizations of at-risk afterschool care centers upon
request. The list must represent data from the preceding October, unless
the NSLP State agency has elected to base data for the list on a month
other than October. If the NSLP State agency chooses a month other than
October, it must do so for the entire State.
(B) The State agency must determine the area eligibility for each
independent at-risk afterschool care center. The State agency must use
the most recent data available, as described in Sec.
226.6(f)(1)(ix)(A). The State agency must use attendance area
information that it has obtained, or verified with the appropriate
school officials to be current, within the last school year.
(C) The State agency must determine the area eligibility of each
sponsored at-risk afterschool care center based on the documentation
submitted by the sponsoring organization in accordance with Sec.
226.15(g).
(D) The State agency must determine whether the afterschool care
programs of at-risk afterschool care centers meet the requirements of
Sec. 226.17a(b) before the centers begin participating in the Program.
(2) Triennial Responsibilities--(i) General reapplication
requirements. At intervals not to exceed 36 months, each State agency
must require participating institutions to reapply to continue their
participation and must require sponsoring organizations to submit a
management plan with the elements set forth in Sec. 226.6(b)(1)(iv).
(ii) Redeterminations of afterschool program eligibility. The State
agency must determine whether institutions reapplying as at-risk
afterschool care centers continue to meet the eligibility requirements,
as described in Sec. 226.17a(b).
(3) Responsibilities at other time intervals--(i) Day care home
tiering redeterminations based on school data. As described in Sec.
226.15(f), tiering determinations are valid for five years if based on
school data. The State agency must ensure that the most recent available
data is used if the determination of a day care home's eligibility as a
tier I day care home is made using school data. The State agency must
not routinely require annual redeterminations of the tiering status of
tier I day care homes based on updated elementary school data. However,
a sponsoring organization, the State agency, or FNS may change the
determination if information becomes available indicating that a day
care home is no longer in a qualified area.
(ii) Area eligibility redeterminations for at-risk afterschool care
centers. Area eligibility determinations are valid for five years for
at-risk afterschool care centers that are already participating in the
Program. The State agency may determine the date in the fifth year when
the next five-year cycle of area eligibility will begin. The State
agency must redetermine the area eligibility for each independent at-
risk afterschool care center in accordance with Sec.
226.6(f)(1)(ix)(B). The State agency must redetermine the area
eligibility of each sponsored at-risk afterschool care center based on
the documentation submitted by the sponsoring organization in accordance
with Sec. 226.15(g). The State agency must not routinely require annual
redeterminations of area eligibility based on updated school data during
the five-year period, except in cases where the State agency has
determined it is most efficient to incorporate area eligibility
decisions into the three-year application cycle. However, a sponsoring
organization, the State agency, or FNS may change the determination if
information becomes available indicating that an at-risk afterschool
care center is no longer area eligible.
(iii) State agency transmittal of census data. Upon receipt of
census data from FNS (on a decennial basis), the State agency must
provide each sponsoring organization of day care homes with census data
showing areas in the State in which at least 50 percent of the children
are from households meeting the income standards for free or reduced-
price meals.
(iv) Additional institution requirements. At intervals and in a
manner specified by the State agency, but not more frequently than
annually, the State agency may:
[[Page 212]]
(A) Require independent centers to submit a budget with sufficiently
detailed information and documentation to enable the State agency to
make an assessment of the independent center's qualifications to manage
Program funds. Such budget must demonstrate that the independent center
will expend and account for funds in accordance with regulatory
requirements, FNS Instruction 796-2 (``Financial Management in the Child
and Adult Care Food Program''), and parts 3015, 3016, and 3019 of this
title and applicable Office of Management and Budget circulars;
(B) Request institutions to report their commodity preference;
(C) Require a private nonprofit institution to submit evidence of
tax exempt status in accordance with Sec. 226.16(a);
(D) Require for-profit institutions to submit documentation on
behalf of their centers of:
(1) Eligibility of at least 25 percent of children in care (enrolled
or licensed capacity, whichever is less) for free or reduced-price
meals; or
(2) Compensation received under title XX of the Social Security Act
of nonresidential day care services and certification that at least 25
percent of children in care (enrolled or licensed capacity, whichever is
less) were title XX beneficiaries during the most recent calendar month.
(E) Require for-profit adult care centers to submit documentation
that they are currently providing nonresidential day care services for
which they receive compensation under title XIX or title XX of the
Social Security Act, and certification that not less than 25 percent of
enrolled participants in each such center during the most recent
calendar month were title XIX or title XX beneficiaries;
(F) Request each institution to indicate its choice to receive all,
part or none of advance payments, if the State agency chooses to make
advance payments available; and
(G) Perform verification in accordance with Sec. 226.23(h) and
paragraph (m)(4) of this section. State agencies verifying the
information on free and reduced-price applications must ensure that
verification activities are conducted without regard to the
participant's race, color, national origin, sex, age, or disability.
(g) Program expansion. Each State agency must take action to expand
the availability of benefits under this Program, and must conduct
outreach to potential sponsoring organizations of family day care homes
that might administer the Program in low-income or rural areas.
(h) Commodity distribution. The State agency must require new
institutions to state their preference to receive commodities or cash-
in-lieu of commodities when they apply, and may periodically inquire as
to participating institutions' preference to receive commodities or
cash-in-lieu of commodities. State agencies must annually provide
institutions with information on foods available in plentiful supply,
based on information provided by the Department. Each institution
electing cash-in-lieu of commodities shall receive such payments. Each
institution which elects to receive commodities shall have commodities
provided to it unless the State agency, after consultation with the
State commodity distribution agency, demonstrates to FNS that
distribution of commodities to the number of such institutions would be
impracticable. The State agency may then, with the concurrence of FNS,
provide cash-in-lieu of commodities for all institutions. A State agency
request for cash-in-lieu of all commodities shall be submitted to FNS
not later than May 1 of the school year preceding the school year for
which the request is made. The State agency shall, by June 1 of each
year, submit a list of institutions which have elected to receive
commodities to the State commodity distribution agency, unless FNS has
approved a request for cash-in-lieu of commodities for all institutions.
The list shall be accompanied by information on the average daily number
of lunches and suppers to be served to participants by each such
institution.
(i) Standard contract. Each State agency shall develop a standard
contract in accordance with Sec. 226.21 and provide for its use between
institutions
[[Page 213]]
and food service management companies. The contract shall expressly and
without exception stipulate:
(1) The institution shall provide the food service management
company with a list of the State agency approved child care centers, day
care homes, adult day care centers, and outside-school-hours care
centers to be furnished meals by the food service management company,
and the number of meals, by type, to be delivered to each location;
(2) The food service management company shall maintain such records
(supported by invoices, receipts or other evidence) as the institution
will need to meet its responsibilities under this part, and shall
promptly submit invoices and delivery reports to the institution no less
frequently than monthly;
(3) The food service management company shall have Federal, State or
local health certification for the plant in which it proposes to prepare
meals for use in the Program, and it shall ensure that health and
sanitation requirements are met at all times. In addition, the State
agency may require the food service management company to provide for
meals which it prepares to be periodically inspected by the local health
department or an independent agency to determine bacteria levels in the
meals being prepared. These bacteria levels shall conform to the
standards which are applied by the local health authority with respect
to the level of bacteria which may be present in meals prepared or
served by other establishments in the locality. Results of these
inspections shall be submitted to the institution and to the State
agency;
(4) The meals served under the contract shall conform to the cycle
menus upon which the bid was based, and to menu changes agreed upon by
the institution and food service management company;
(5) The books and records of the food service management company
pertaining to the institution's food service operation shall be
available for inspection and audit by representatives of the State
agency, of the Department, and of the U.S. General Accounting Office at
any reasonable time and place, for a period of 3 years from the date of
receipt of final payment under the contract, or in cases where an audit
requested by the State agency or the Department remains unresolved,
until such time as the audit is resolved;
(6) The food service management company shall operate in accordance
with current Program regulations;
(7) The food service management company shall not be paid for meals
which are delivered outside of the agreed upon delivery time, are
spoiled or unwholesome at the time of delivery, or do not otherwise meet
the meal requirements contained in the contract;
(8) Meals shall be delivered in accordance with a delivery schedule
prescribed in the contract;
(9) Increases and decreases in the number of meal orders may be made
by the institution, as needed, within a prior notice period mutually
agreed upon in the contract;
(10) All meals served under the Program shall meet the requirements
of Sec. 226.20;
(11) All breakfasts, lunches, and suppers delivered for service in
outside-school-hours care centers shall be unitized, with or without
milk, unless the State agency determines that unitization would impair
the effectiveness of food service operations. For meals delivered to
child care centers and day care homes, the State agency may require
unitization, with or without milk, of all breakfasts, lunches, and
suppers only if the State agency has evidence which indicates that this
requirement is necessary to ensure compliance with Sec. 226.20.
(j) Procurement provisions. State agencies must require institutions
to adhere to the procurement provisions set forth in Sec. 226.22 and
must determine that all meal procurements with food service management
companies are in conformance with bid and contractual requirements of
Sec. 226.22.
(k) Administrative reviews for institutions and responsible
principals and responsible individuals--(1) General. The State agency
must develop procedures for offering administrative reviews to
institutions and responsible principals
[[Page 214]]
and responsible individuals. The procedures must be consistent with
paragraph (k) of this section.
(2) Actions subject to administrative review. Except as provided in
Sec. 226.8(g), the State agency must offer an administrative review for
the following actions:
(i) Application denial. Denial of a new or renewing institution's
application for participation (see paragraph (b) of this section, on
State agency review of an institution's application; and paragraphs
(c)(1) and (c)(2) of this section, on State agency denial of a new or
renewing institution's application);
(ii) Denial of sponsored facility application. Denial of an
application submitted by a sponsoring organization on behalf of a
facility;
(iii) Notice of proposed termination. Proposed termination of an
institution's agreement (see paragraphs (c)(2)(iii)(C), (c)(3)(iii)(C),
and (c)(5)(i)(B) of this section, dealing with proposed termination of
agreements with renewing institutions, participating institutions, and
participating institutions suspended for health or safety violations);
(iv) Notice of proposed disqualification of a responsible principal
or responsible individual. Proposed disqualification of a responsible
principal or responsible individual (see paragraphs (c)(1)(iii)(C),
(c)(2)(iii)(C), (c)(3)(iii)(C), and (c)(5)(i)(B) of this section,
dealing with proposed disqualification of responsible principals or
responsible individuals in new, renewing, and participating
institutions, and participating institutions suspended for health or
safety violations);
(v) Suspension of participation. Suspension of an institution's
participation (see paragraphs (c)(5)(i)(B) and (c)(5)(ii)(D) of this
section, dealing with suspension for health or safety reasons or
submission of a false or fraudulent claim);
(vi) Start-up or expansion funds denial. Denial of an institution's
application for start-up or expansion payments (see Sec. 226.7(h));
(vii) Advance denial. Denial of a request for an advance payment
(see Sec. 226.10(b));
(viii) Recovery of advances. Recovery of all or part of an advance
in excess of the claim for the applicable period. The recovery may be
through a demand for full repayment or an adjustment of subsequent
payments (see Sec. 226.10(b)(3));
(ix) Claim denial. Denial of all or a part of an institution's claim
for reimbursement (except for a denial based on a late submission under
Sec. 226.10(e)) (see Sec. Sec. 226.10(f) and 226.14(a));
(x) Claim deadline exceptions and requests for upward adjustments to
a claim. Decision by the State agency not to forward to FNS an exception
request by an institution for payment of a late claim, or a request for
an upward adjustment to a claim (see Sec. 226.10(e));
(xi) Overpayment demand. Demand for the remittance of an overpayment
(see Sec. 226.14(a)); and
(xii) Other actions. Any other action of the State agency affecting
an institution's participation or its claim for reimbursement.
(3) Actions not subject to administrative review. The State agency
is prohibited from offering administrative reviews of the following
actions:
(i) FNS decisions on claim deadline exceptions and requests for
upward adjustments to a claim. A decision by FNS to deny an exception
request by an institution for payment of a late claim, or for an upward
adjustment to a claim (see Sec. 226.10(e));
(ii) Determination of serious deficiency. A determination that an
institution is seriously deficient (see paragraphs (c)(1)(iii)(A),
(c)(2)(iii)(A), (c)(3)(iii)(A), and (c)(5)(i)(B) of this section,
dealing with proposed disqualification of responsible principals or
responsible individuals in new, renewing, and participating
institutions, and participating institutions suspended for health or
safety violations);
(iii) Disqualification and placement on State agency list and
National disqualified list. Disqualification of an institution or a
responsible principal or responsible individual, and the subsequent
placement on the State agency list and the National disqualified list
(see paragraphs (c)(1)(iii)(E), (c)(2)(iii)(E), (c)(3)(iii)(E), and
(c)(5)(i)(C) of this section, dealing with proposals to disqualify
related to new, renewing, and participating institutions, and in
institutions suspended for health or safety violations); or
[[Page 215]]
(iv) Termination. Termination of a participating institution's
agreement, including termination of a participating institution's
agreement based on the disqualification of the institution by another
State agency or FNS (see paragraphs (c)(3)(i) and (c)(7)(ii) of this
section).
(4) Provision of administrative review procedures to institutions
and responsible principals and responsible individuals. The State
agency's administrative review procedures must be provided:
(i) Annually to all institutions;
(ii) To an institution and to each responsible principal and
responsible individual when the State agency takes any action subject to
an administrative review as described in paragraph (k)(2) of this
section; and
(iii) Any other time upon request.
(5) Procedures. Except as described in paragraph (k)(9) of this
section, which sets forth the circumstances under which an abbreviated
administrative review is held, the State agency must follow the
procedures in this paragraph (k)(5) when an institution or a responsible
principal or responsible individual appeals any action subject to
administrative review as described in paragraph (k)(2) of this section.
(i) Notice of action. The institution's executive director and
chairman of the board of directors, and the responsible principals and
responsible individuals, must be given notice of the action being taken
or proposed, the basis for the action, and the procedures under which
the institution and the responsible principals or responsible
individuals may request an administrative review of the action.
(ii) Time to request administrative review. The request for
administrative review must be submitted in writing not later than 15
days after the date the notice of action is received, and the State
agency must acknowledge the receipt of the request for an administrative
review within 10 days of its receipt of the request.
(iii) Representation. The institution and the responsible principals
and responsible individuals may retain legal counsel, or may be
represented by another person.
(iv) Review of record. Any information on which the State agency's
action was based must be available to the institution and the
responsible principals and responsible individuals for inspection from
the date of receipt of the request for an administrative review.
(v) Opposition. The institution and the responsible principals and
responsible individuals may refute the findings contained in the notice
of action in person or by submitting written documentation to the
administrative review official. In order to be considered, written
documentation must be submitted to the administrative review official
not later than 30 days after receipt of the notice of action.
(vi) Hearing. A hearing must be held by the administrative review
official in addition to, or in lieu of, a review of written information
only if the institution or the responsible principals and responsible
individuals request a hearing in the written request for an
administrative review. If the institution's representative, or the
responsible principals or responsible individuals or their
representative, fail to appear at a scheduled hearing, they waive the
right to a personal appearance before the administrative review
official, unless the administrative review official agrees to reschedule
the hearing. A representative of the State agency must be allowed to
attend the hearing to respond to the testimony of the institution and
the responsible principals and responsible individuals and to answer
questions posed by the administrative review official. If a hearing is
requested, the institution, the responsible principals and responsible
individuals, and the State agency must be provided with at least 10 days
advance notice of the time and place of the hearing.
(vii) Administrative review official. The administrative review
official must be independent and impartial. This means that, although
the administrative review official may be an employee of the State
agency, he/she must not have been involved in the action that is the
subject of the administrative review, or have a direct personal or
financial interest in the outcome of the administrative review. The
institution and the responsible principals and responsible individuals
must be permitted to contact the administrative review official directly
if they so desire.
[[Page 216]]
(viii) Basis for decision. The administrative review official must
make a determination based solely on the information provided by the
State agency, the institution, and the responsible principals and
responsible individuals, and based on Federal and State laws,
regulations, policies, and procedures governing the Program.
(ix) Time for issuing a decision. Within 60 days of the State
agency's receipt of the request for an administrative review, the
administrative review official must inform the State agency, the
institution's executive director and chairman of the board of directors,
and the responsible principals and responsible individuals, of the
administrative review's outcome. This timeframe is an administrative
requirement for the State agency and may not be used as a basis for
overturning the State agency's action if a decision is not made within
the specified timeframe.
(x) Final decision. The determination made by the administrative
review official is the final administrative determination to be afforded
the institution and the responsible principals and responsible
individuals.
(6) Federal audit findings. FNS may assert a claim against the State
agency, in accordance with the procedures set forth in Sec. 226.14(c),
when an administrative review results in the dismissal of a claim
against an institution asserted by the State agency based upon Federal
audit findings.
(7) Record of result of administrative reviews. The State agency
must maintain searchable records of all administrative reviews and their
disposition.
(8) Combined administrative reviews for responsible principals and
responsible individuals. The State agency must conduct the
administrative review of the proposed disqualification of the
responsible principals and responsible individuals as part of the
administrative review of the application denial, proposed termination,
and/or proposed disqualification of the institution with which the
responsible principals or responsible individuals are associated.
However, at the administrative review official's discretion, separate
administrative reviews may be held if the institution does not request
an administrative review or if either the institution or the responsible
principal or responsible individual demonstrates that their interests
conflict.
(9) Abbreviated administrative review. The State agency must limit
the administrative review to a review of written submissions concerning
the accuracy of the State agency's determination if the application was
denied or the State agency proposes to terminate the institution's
agreement because:
(i) The information submitted on the application was false (see
paragraphs (c)(1)(ii)(A), (c)(2)(ii)(A), and (c)(3)(ii)(A) of this
section);
(ii) The institution, one of its sponsored facilities, or one of the
principals of the institution or its facilities is on the national
disqualified list (see paragraph (b)(12) of this section);
(iii) The institution, one of its sponsored facilities, or one of
the principals of the institution or its facilities is ineligible to
participate in any other publicly funded program by reason of violation
of the requirements of the program (see paragraph (b)(13) and
(c)(3)(ii)(S) of this section); or
(iv) The institution, one of its sponsored facilities, or one of the
principals of the institution or its facilities has been convicted for
any activity that indicates a lack of business integrity (see paragraphs
(b)(14) and (c)(3)(ii)(T) of this section).
(10) Effect of State agency action. The State agency's action must
remain in effect during the administrative review. The effect of this
requirement on particular State agency actions is as follows.
(i) Overpayment demand. During the period of the administrative
review, the State agency is prohibited from taking action to collect or
offset the overpayment. However, the State agency must assess interest
beginning with the initial demand for remittance of the overpayment and
continuing through the period of administrative review unless the
administrative review official overturns the State agency's action.
(ii) Recovery of advances. During the administrative review, the
State agency must continue its efforts to recover advances in excess of
the claim for reimbursement for the applicable period. The recovery may
be through a demand
[[Page 217]]
for full repayment or an adjustment of subsequent payments.
(iii) Program payments. The availability of Program payments during
an administrative review of the denial of a new institution's
application, denial of a renewing institution's application, proposed
termination of a participating institution's agreement, and suspension
of an institution are addressed in paragraphs (c)(1)(iii)(D),
(c)(2)(iii)(D), (c)(3)(iii)(D), (c)(5)(i)(D), and (c)(5)(ii)(E),
respectively, of this section.
(l) Administrative reviews for day care homes--(1) General. The
State agency must ensure that, when a sponsoring organization proposes
to terminate its Program agreement with a day care home for cause, the
day care home is provided an opportunity for an administrative review of
the proposed termination. The State agency may do this either by
electing to offer a State-level administrative review, or by electing to
require the sponsoring organization to offer an administrative review.
The State agency must notify the appropriate FNSRO of its election under
this option, or any change it later makes under this option, by
September 25, 2002 or within 30 days of any subsequent change under this
option. The State agency must make the same election with regard to who
offers the administrative review to any day care home in the Program in
that State. The State agency or the sponsoring organization must develop
procedures for offering and providing these administrative reviews, and
these procedures must be consistent with this paragraph (l).
(2) Actions subject to administrative review. The State agency or
sponsoring organization must offer an administrative review to a day
care home that appeals a notice of intent to terminate their agreement
for cause or a suspension of their participation (see Sec. Sec.
226.16(l)(3)(iii) and (l)(4)(ii)).
(3) Actions not subject to administrative review. Neither the State
agency nor the sponsoring organization is required to offer an
administrative review for reasons other than those listed in paragraph
(l)(2) of this section.
(4) Provision of administrative review procedures to day care homes.
The administrative review procedures must be provided:
(i) Annually to all day care homes;
(ii) To a day care home when the sponsoring organization takes any
action subject to an administrative review as described in paragraph
(l)(2) of this section; and
(iii) Any other time upon request.
(5) Procedures. The State agency or sponsoring organization, as
applicable (depending on the State agency's election pursuant to
paragraph (l)(1) of this section) must follow the procedures in this
paragraph (l)(5) when a day care home requests an administrative review
of any action described in paragraph (l)(2) of this section.
(i) Uniformity. The same procedures must apply to all day care
homes.
(ii) Representation. The day care home may retain legal counsel, or
may be represented by another person.
(iii) Review of record and opposition. The day care home may review
the record on which the decision was based and refute the action in
writing. The administrative review official is not required to hold a
hearing.
(iv) Administrative review official. The administrative review
official must be independent and impartial. This means that, although
the administrative review official may be an employee of the State
agency or an employee or board member of the sponsoring organization,
he/she must not have been involved in the action that is the subject of
the administrative review or have a direct personal or financial
interest in the outcome of the administrative review;
(v) Basis for decision. The administrative review official must make
a determination based on the information provided by the sponsoring
organization and the day care home and on Federal and State laws,
regulations, polices, and procedures governing the Program.
(vi) Time for issuing a decision. The administrative review official
must inform the sponsoring organization and the day care home of the
administrative review's outcome within the period of time specified in
the State agency's or sponsoring organization's administrative review
procedures. This timeframe is an administrative requirement for the
State agency or
[[Page 218]]
sponsoring organization and may not be used as a basis for overturning
the termination if a decision is not made within the specified
timeframe.
(vii) Final decision. The determination made by the administrative
review official is the final administrative determination to be afforded
the day care home.
(m) Program assistance--(1) General. The State agency must provide
technical and supervisory assistance to institutions and facilities to
facilitate effective Program operations, monitor progress toward
achieving Program goals, and ensure compliance with all requirements of
title VI of the Civil Rights Act of 1964, title IX of the Education
amendments of 1972, section 504 of the Rehabilitation Act of 1973, the
Age Discrimination Act of 1975, and the Department's regulations
concerning nondiscrimination (parts 15, 15a, and 15b of this title). The
State agency must maintain documentation of supervisory assistance
activities, including reviews conducted, corrective actions prescribed,
and follow-up efforts.
(2) Review priorities. In choosing institutions for review, in
accordance with paragraph (m)(6) of this section, the State agency must
target for more frequent review institutions whose prior review included
a finding of serious deficiency.
(3) Review content. As part of its conduct of reviews, the State
agency must assess each institution's compliance with the requirements
of this part pertaining to:
(i) Recordkeeping;
(ii) Meal counts;
(iii) Administrative costs;
(iv) Any applicable instructions and handbooks issued by FNS and the
Department to clarify or explain this part, and any instructions and
handbooks issued by the State agency which are not inconsistent with the
provisions of this part;
(v) Facility licensing and approval;
(vi) Compliance with the requirements for annual updating of
enrollment forms;
(vii) If an independent center, observation of a meal service;
(viii) If a sponsoring organization, training and monitoring of
facilities;
(ix) If a sponsoring organization of day care homes, implementation
of the serious deficiency and termination procedures for day care homes
and, if such procedures have been delegated to sponsoring organizations
in accordance with paragraph (l)(1) of this section, the administrative
review procedures for day care homes;
(x) If a sponsoring organization, implementation of the household
contact system established by the State agency pursuant to paragraph
(m)(5) of this section;
(xi) If a sponsoring organization of day care homes, the
requirements for classification of tier I and tier II day care homes;
and
(xii) All other Program requirements.
(4) Review of sponsored facilities. As part of each required review
of a sponsoring organization, the State agency must select a sample of
facilities, in accordance with paragraph (m)(6) of this section. As part
of such reviews, the State agency must conduct verification of Program
applications in accordance with Sec. 226.23(h) and must compare
available enrollment and attendance records and the sponsoring
organization's review results for that facility to meal counts submitted
by those facilities for five days.
(5) Household contacts. As part of their monitoring of institutions,
State agencies must establish systems for making household contacts to
verify the enrollment and attendance of participating children. Such
systems must specify the circumstances under which household contacts
will be made, as well as the procedures for conducting household
contacts. In addition, State agencies must establish a system for
sponsoring organizations to use in making household contacts as part of
their review and oversight of participating facilities. Such systems
must specify the circumstances under which household contacts will be
made, as well as the procedures for conducting household contacts. State
agencies must submit to FNSROs, no later than April 1, 2005, the
policies and procedures they have developed governing household contacts
conducted by both the State agency, as part of institution and facility
reviews conducted in accordance with this paragraph (m), and
[[Page 219]]
by sponsoring organizations as part of the facility review process
described in Sec. 226.16(d)(5).
(6) Frequency and number of required institution reviews. The State
agency must annually review at least 33.3 percent of all institutions.
At least 15 percent of the total number of facility reviews required
must be unannounced. The State agency must review institutions according
to the following schedule:
(i) Independent centers and sponsoring organizations of 1 to 100
facilities must be reviewed at least once every three years. A review of
such a sponsoring organization must include reviews of 10 percent of the
sponsoring organization's facilities;
(ii) Sponsoring organizations with more than 100 facilities must be
reviewed at least once every two years. These reviews must include
reviews of 5 percent of the first 1,000 facilities and 2.5 percent of
the facilities in excess of 1,000; and
(iii) New institutions that are sponsoring organizations of five or
more facilities must be reviewed within the first 90 days of Program
operations.
(n) Program irregularities. Each State agency shall promptly
investigate complaints received or irregularities noted in connection
with the operation of the Program, and shall take appropriate action to
correct any irregularities. State agencies shall maintain on file
evidence of such investigations and actions. FNS and OIG may make
investigations at the request of the State agency, or whenever FNS or
OIG determines that investigations are appropriate.
(o) Child care standards compliance. The State agency shall, when
conducting administrative reviews of child care centers, and day care
homes approved by the State agency under paragraph (d)(3) of this
section, determine compliance with the child care standards used to
establish eligibility, and the institution shall ensure that all
violations are corrected and the State shall ensure that the institution
has corrected all violations. If violations are not corrected within the
specified timeframe for corrective action, the State agency must issue a
notice of serious deficiency in accordance with paragraph (c) of this
section or Sec. 226.16(l), as appropriate. However, if the health or
safety of the children is imminently threatened, the State agency or
sponsoring organization must follow the procedures set forth at
paragraph (c)(5)(i) of this section, or Sec. 226.16(l)(4), as
appropriate. The State agency may deny reimbursement for meals served to
attending children in excess of authorized capacity.
(p) Sponsoring organization agreement. Each State agency shall
develop and provide for the use of a standard form of written permanent
agreement between each day care home sponsoring organization and all day
care homes participating in the Program under such organization. Nothing
in the preceding sentence shall be construed to limit the ability of the
sponsoring organization to suspend or terminate the permanent agreement
in accordance with Sec. 226.16(l). The State agency must also include
in this agreement its policy to restrict transfers of day care homes
between sponsoring organizations. The policy must restrict the transfers
to no more frequently than once per year, except under extenuating
circumstances, such as termination of the sponsoring organization's
agreement or other circumstances defined by the State agency. However,
the State agency may, at the request of the sponsor, approve an
agreement developed by the sponsor. State agencies may develop a similar
form for use between sponsoring organizations and other types of
facilities.
(q) Following its reviews of institutions and facilities under
Sec. Sec. 226.6(m) and 226.23(h) conducted prior to July 1, 1988, the
State agency shall report data on key elements of program operations on
a form designated by FNS. These key elements include but are not limited
to the program areas of meal requirements, determination of eligibility
for free and reduced price meals, and the accuracy of reimbursement
claims. These forms shall be submitted within 90 days of the completion
of the data collection for the institutions except that, if the State
has elected to conduct reviews of verification separate from its
administrative reviews, the State shall retain data until all key
elements have been reviewed and
[[Page 220]]
shall report all data for each institution on one form within 90 days of
the completion of the data collection for all key elements for that
institution. States shall ensure that all key element data for an
institution is collected during a 12-month period.
(r) WIC program information. State agencies must provide information
on the importance and benefits of the Special Supplemental Nutrition
Program for Women, Infants, and Children (WIC) and WIC income
eligibility guidelines, to participating institutions. In addition, the
State agency must ensure that:
(1) Participating family day care homes and sponsored child care
centers receive this information, and periodic updates of this
information, from their sponsoring organizations or the State agency;
and
(2) The parents of enrolled children also receive this information.
[47 FR 36527, Aug. 20, 1982]
Editorial Note: For Federal Register citations affecting Sec.
226.6, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 226.7 State agency responsibilities for financial management.
(a) This section prescribes standards of financial management
systems in administering Program funds by the State agency and
institutions.
(b) Each State agency shall maintain an acceptable financial
management system, adhere to financial management standards and
otherwise carry out financial management policies in accordance with 7
CFR part 3015, 7 CFR part 3016 and 7 CFR part 3019, as applicable. State
agencies or FNSRO's, where applicable, shall also have a system in place
for monitoring and reviewing the institutions' documentation of their
nonprofit status to ensure that all Program reimbursement funds are
used: (1) Solely for the conduct of the food service operation; or (2)
to improve such food service operations, principally for the benefit of
the participants.
(c) Management evaluations and audits. State agencies shall provide
FNS with full opportunity to conduct management evaluations (including
visits to institutions and facilities) of all operations of the State
agency under the Program and shall provide OIG with full opportunity to
conduct audits (including visits to institutions and facilities) of all
operations of the State agency under the Program. Within 60 calendar
days of receipt of each management evaluation report, the State agency
shall submit to FNSRO a written plan for correcting serious
deficiencies, including specific timeframes for accomplishing corrective
actions and initiating follow-up efforts. If a State agency makes a
showing of good cause, however, FNS may allow more than 60 days in which
to submit a plan. Each State agency shall make available its records,
including records of the receipt and expenditure of funds, upon request
by FNS or OIG. OIG shall also have the right to make audits of the
records and operation of any institution.
(d) Reports. Each State agency shall submit to FNS the final Report
of the Child and Adult Care Food Program (FNS 44) for each month which
shall be limited to claims submitted in accordance with Sec. 226.10(e)
and which shall be postmarked and/or submitted no later than 90 days
following the last day of the month covered by the report. States shall
not receive Program funds for any month for which the final report is
not submitted within this time limit unless FNS grants an exception.
Upward adjustments to a State agency's report shall not be made after 90
days from the month covered by the report unless authorized by FNS.
Downward adjustments shall always be made, without FNS authorization,
regardless of when it is determined that such adjustments are necessary.
Adjustments shall be reported to FNS in accordance with procedures
established by FNS. Each State agency shall also submit to FNS a
quarterly Financial Status Report (SF-269) on the use of Program funds.
Such reports shall be postmarked and/or submitted no later than 30 days
after the end of each fiscal year quarter. Obligations shall be reported
only for the fiscal year in which they occur. A final Financial Status
Report for each fiscal year shall be postmarked and/or submitted to FNS
[[Page 221]]
within 120 days after the end of the fiscal year. FNS shall not be
responsible for reimbursing unpaid Program obligations reported later
than 120 days after the close of the fiscal year in which they were
incurred.
(e) Annual plan. Each State shall submit to the Secretary for
approval by August 15 of each year an annual plan for the use of State
administrative expense funds, including a staff formula for State
personnel.
(f) Rate assignment. Each State agency must require institutions
(other than emergency shelters, at-risk afterschool care centers, and
sponsoring organizations of emergency shelters, at-risk afterschool care
centers, or day care homes) to submit, not less frequently than
annually, information necessary to assign rates of reimbursement as
outlined in Sec. 226.9.
(g) Budget approval. The State agency must review institution
budgets and must limit allowable administrative claims by each
sponsoring organization to the administrative costs approved in its
budget. The budget must demonstrate the institution's ability to manage
Program funds in accordance with this part, FNS Instruction 796-2
(``Financial Management in the Child and Adult Care Food Program''),
parts 3015, 3016, and 3019 of this title, and applicable Office of
Management and Budget circulars. Sponsoring organizations must submit an
administrative budget to the State agency annually, and independent
centers must submit budgets as frequently as required by the State
agency. Budget levels may be adjusted to reflect changes in Program
activities. For sponsoring organizations of centers, the State agency is
prohibited from approving the sponsoring organization's administrative
budget, or any amendments to the budget, if the administrative budget
shows the Program will be charged for administrative costs in excess of
15 percent of the meal reimbursements estimated to be earned during the
budget year. However, the State agency may waive this limit if the
sponsoring organization provides justification that it requires Program
funds in excess of 15 percent to pay its administrative costs and if the
State agency is convinced that the institution will have adequate
funding to provide meals meeting the requirements of Sec. 226.20. The
State agency must document all waiver approvals and denials in writing,
and must provide a copy of all such letters to the appropriate FNSRO.
(h) Start-up and expansion payments. Each State agency shall
establish procedures for evaluating requests for start-up and expansion
payments, issuing these payments to eligible sponsoring organizations,
and monitoring the use of these payments.
(i) Advance payments. Each State agency shall establish procedures
for issuing advance payments by the first day of each month and
comparing these payments with earned reimbursement on a monthly basis.
The State agency shall maintain on file a statement of the State's law
and policy governing the use of interest earned on advanced funds by
sponsors, institutions, child care facilities and adult day care
facilities.
(j) Recovery of overpayments. Each State agency shall establish
procedures to recover outstanding start-up, expansion and advance
payments from institutions which, in the opinion of the State agency,
will not be able to earn these payments.
(k) Claims processing. Each State agency shall establish procedures
for institutions to properly submit claims for reimbursement. Such
procedures must include State agency edit checks, including but not
limited to ensuring that payments are made only for approved meal types
and that the number of meals for which reimbursement is provided does
not exceed the product of the total enrollment times operating days
times approved meal types. All valid claims shall be paid within 45
calendar days of receipt. Within 15 calendar days of receipt of any
incomplete or incorrect claim which must be revised for payment, the
State agency shall notify the institution as to why and how such claim
must be revised. If the State agency disallows partial or full payment
for a claim for reimbursement, it shall notify the institution which
submitted the claim of its right to appeal under Sec. 226.6(k). State
agencies may permit disallowances to be appealed separately from claims
for reimbursement.
[[Page 222]]
(l) Participation controls. The State agency may establish control
procedures to ensure that payment is not made for meals served to
participants attending in excess of the authorized capacity of each
independent center, adult day care facility or child care facility.
(m) Financial management system. Each State agency shall establish a
financial management system in accordance with 7 CFR part 3015, 7 CFR
part 3016 and 7 CFR part 3019, as applicable, and FNS guidance to
identify allowable Program costs and establish standards for
institutional recordkeeping and reporting. These standards shall (1)
prohibit claiming reimbursement for meals provided by a participant's
family, except as authorized by Sec. 226.18(e) and (2) allow the cost
of meals served to adults who perform necessary food service labor under
the Program, except in day care homes. The State agency shall provide
guidance on financial management requirements to each institution.
[47 FR 36527, Aug. 20, 1982, as amended at 48 FR 21530, May 13, 1983;
Amdt. 5, 49 FR 18988, May 4, 1984; 50 FR 8580, Mar. 4, 1985; 50 FR
26975, July 1, 1985; 53 FR 52589, Dec. 28, 1988; Amdt. 22, 55 FR 1378,
Jan. 14, 1990; 63 FR 9728, Feb. 26, 1998; 67 FR 43490, June 27, 2002; 69
FR 53542, Sept. 1, 2004; 71 FR 5, Jan. 3, 2006; 71 FR 39518, July 13,
2006; 72 FR 41606, July 31, 2007]
Sec. 226.8 Audits.
(a) Unless otherwise exempt, audits at the State and institution
levels must be conducted in accordance with Office of Management and
Budget circular A-133 and the Department's implementing regulations at
part 3052 of this title. State agencies must establish audit policy for
for-profit institutions. However, the audit policy established by the
State agency must not conflict with the authority of the State agency or
the Department to perform, or cause to be performed, audits, reviews,
agreed-upon procedures engagements, or other monitoring activities.
(b) The funds provided to the State agency under Sec. 226.4(j) may
be made available to institutions to fund a portion of organization-wide
audits made in accordance with part 3052 of this title. The funds
provided to an institution for an organization-wide audit must be
determined in accordance with Sec. 3052.230(a) of this title.
(c) Funds provided under Sec. 226.4(j) may be used by the State
agency to conduct program-specific audits of institutions not subject to
organization-wide audits, or for which the State agency considers
program specific audits to be needed. The State agency may use any funds
remaining after all required program-specific audits have been performed
to conduct administrative reviews or agreed-upon procedures engagements
of institutions.
(d) Funds provided under Sec. 226.4(j) may only be obligated during
the fiscal year for which those funds are allocated. If funds provided
under Sec. 226.4(i) are not sufficient to meet the requirements of this
section, the State agency may then use available State administrative
expense funds to conduct audits, provided that the State agency is
arranging for the audits and has not passed the responsibility down to
the institution.
(e) In conducting management evaluations, reviews, or audits in a
fiscal year, the State agency, FNS, or OIG may disregard an overpayment
if the overpayment does not exceed $600. A State agency may establish,
through State law, regulation or procedure, an alternate disregard
threshold that does not exceed $600. This disregard may be made once per
each management evaluation, review, or audit per Program within a fiscal
year. However, no overpayment is to be disregarded where there is
substantial evidence of violations of criminal law or civil fraud
statutes.
(f) While OIG shall rely to the fullest extent feasible upon State
sponsored audits, OIG may, whenever it considers necessary:
(1) Make audits on a statewide basis;
(2) Perform on-site test audits;
(3) Review audit reports and related working papers of audits
performed by or for State agencies.
(g) State agencies are not required to provide a hearing to an
institution for State actions taken on the basis of a Federal audit
determination. If a State agency does not provide a hearing in such
situations, FNS will provide a
[[Page 223]]
hearing, upon request, in accordance with procedures set forth in Sec.
226.6(k).
[47 FR 36527, Aug. 20, 1982, as amended at 50 FR 8580, Mar. 4, 1985; 51
FR 4295, Feb. 4, 1986; 52 FR 5526, Feb. 25, 1987; 53 FR 52590, Dec. 28,
1988; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 67 FR 43490, June 27, 2002;
69 FR 53543, Sept. 1, 2004; 70 FR 43261, July 27, 2005; 71 FR 5, Jan. 3,
2006; 71 FR 30563, May 30, 2006; 72 FR 41607, July 31, 2007]
Subpart D_Payment Provisions
Sec. 226.9 Assignment of rates of reimbursement for centers.
(a) The State agency shall assign rates of reimbursement, not less
frequently than annually, on the basis of family-size and income
information reported by each institution. However, no rates should be
assigned for emergency shelters and at-risk afterschool care centers.
Assigned rates of reimbursement may be changed more frequently than
annually if warranted by changes in family-size and income information.
Assigned rates of reimbursement shall be adjusted annually to reflect
changes in the national average payment rates.
(b) Except for emergency shelters and at-risk afterschool care
centers, the State agency must either:
(1) Require that institutions submit each month's figures for meals
served daily to participants from families meeting the eligibility
standards for free meals, to participants from families meeting the
eligibility standards for reduced-price meals, and to participants from
families not meeting such guidelines; or
(2) Establish claiming percentages, not less frequently than
annually, for each institution on the basis of the number of enrolled
participants eligible for free, reduced-price, and paid meals, except
that children who only participate in emergency shelters or the at-risk
afterschool snack component of the Program must not be considered to be
enrolled participants for the purpose of establishing claiming
percentages; or
(3) Determine a blended per-meal rate of reimbursement, not less
frequently than annually, by adding the products obtained by multiplying
the applicable national average payment rate of reimbursement for each
category (free, reduced-price, paid) by the claiming percentage for that
category.
(c) States have two methods of reimbursing institutions. The method
chosen by the State agency must be applied to all institutions
participating in the Program in that State. These methods are:
(1) Meals times rates payment, which involves reimbursing an
institution for meals served at the assigned rate for each meal. This
method entails no comparison to the costs incurred by the institution
for the meal service; and,
(2) Meals times rates or actual costs, whichever is the lesser,
which involves reimbursing an institution for meals served at the
assigned rate for each meal or at the level of the costs actually
incurred by the institution for the meal service. This method does
entail a comparison of the costs incurred to the meal rates, with the
costs being a limiting factor on the level of reimbursement an
institution may receive.
(d) In those States where the State agency has chosen the option to
implement a meals times rates payment system State-wide, the State
agency may elect to pay an institution's final claim for reimbursement
for the fiscal year at higher reassigned rates of reimbursement for
lunches and suppers; however, the reassigned rates may not exceed the
applicable maximum rates of reimbursement established under Sec.
210.11(b) of the National School Lunch Program regulations. In those
States which use the method of comparing meals times rates or actual
costs, whichever is lesser, the total payments made to an institution
shall not exceed the total net costs incurred for the fiscal year.
[47 FR 36527, Aug. 20, 1982, as amended at 48 FR 21530, May 13, 1983; 53
FR 52590, Dec. 28, 1988; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 71 FR 5,
Jan. 3, 2006; 72 FR 41607, July 31, 2007]
Sec. 226.10 Program payment procedures.
(a) If a State agency elects to issue advance payments to all or
some of the participating institutions in the State, it must provide
such advances no later than the first day of each month to those
eligible institutions electing to receive advances in accordance with
[[Page 224]]
Sec. 226.6 (f)(3)(iv)(F). Advance payments shall equal the full level
of claims estimated by the State agency to be submitted in accordance
with paragraph (c) of this section, considering prior reimbursement
claims and other information such as fluctuations in enrollment. The
institution may decline to receive all or any part of the advance.
(b) For each fiscal year, the amount of payment made, including
funds advanced to an institution, shall not exceed the amount of valid
reimbursement claimed by that institution. To ensure that institutions
do not receive excessive advance payments, the State agency shall
observe the following procedures:
(1) After three advance payments have been made to an institution,
the State agency shall ensure that no subsequent advance is made until
the State agency has validated the institution's claim for reimbursement
for the third month prior to the month for which the next advance is to
be paid.
(2) If the State agency has audit or monitoring evidence of
extensive program deficiencies or other reasons to believe that an
institution will not be able to submit a valid claim for reimbursement,
advance payments shall be withheld until the claim is received or the
deficiencies are corrected.
(3) Each month the State agency shall compare incoming claims
against advances to ensure that the level of funds authorized under
paragraph (a) of this section does not exceed the claims for
reimbursement received from the institution. Whenever this process
indicates that excessive advances have been authorized, the State agency
shall either demand full repayment or adjust subsequent payments,
including advances.
(4) If, as a result of year end reconciliation as required by 7 CFR
part 3016 or 7 CFR part 3019, as applicable, the State agency determines
that reimbursement earned by an institution during a fiscal year is less
than the amount paid, including funds advanced to that institution, the
State agency shall demand repayment of the outstanding balance or adjust
subsequent payments.
(c) Claims for Reimbursement shall report information in accordance
with the financial management system established by the State agency,
and in sufficient detail to justify the reimbursement claimed and to
enable the State agency to provide the final Report of the Child and
Adult Care Food Program (FNS 44) required under Sec. 226.7(d). In
submitting a Claim for Reimbursement, each institution shall certify
that the claim is correct and that records are available to support that
claim. For each month in which independent for-profit child care centers
and independent for-profit outside-school-hours care centers claim
reimbursement, they must submit the number and percentage of children in
care (enrolled or licensed capacity, whichever is less) that documents
at least 25 percent are eligible for free or reduced-price meals or are
title XX beneficiaries. However, children who only participate in the
at-risk afterschool snack component of the Program must not be
considered in determining this percentage. Sponsoring organizations of
for-profit child care centers or for-profit outside-school-hours care
centers must submit the number and percentage of children in care
(enrolled or licensed capacity, whichever is less) that documents that
at least 25 percent are eligible for free or reduced-price meals or are
title XX beneficiaries. Sponsoring organizations of such centers must
not submit a claim for any for-profit center in which less than 25
percent of the children in care (enrolled or licensed capacity,
whichever is less) during the claim month were eligible for free or
reduced-price meals or were title XX beneficiaries. Independent for-
profit adult day care centers shall submit the percentages of enrolled
adult participants receiving title XIX or title XX benefits for the
month claimed for months in which not less than 25 percent of enrolled
adult participants were title XIX or title XX beneficiaries. Sponsoring
organizations of such adult day care centers shall submit the percentage
of enrolled adult participants receiving title XIX or title XX benefits
for each center for the claim. Sponsoring organizations of such centers
shall not submit claims for adult day care centers in which less than 25
percent of enrolled adult participants were title XIX or title XX
[[Page 225]]
beneficiaries for the month claimed. Prior to submitting its
consolidated monthly claim to the State agency, each sponsoring
organization must perform edit checks on each facility's meal claim. At
a minimum, the sponsoring organization's edit checks must:
(1) Verify that each facility has been approved to serve the types
of meals claimed;
(2) Compare the number of children enrolled for care at each
facility, multiplied by the number of days on which the facility is
approved to serve meals, to the total number of meals claimed by the
facility for that month. Discrepancies between the facility's meal claim
and its enrollment must be subjected to more thorough review to
determine if the claim is accurate; and
(3) Detect block claiming (as defined in Sec. 226.2) by any
facility. If block claiming is detected, the sponsoring organization
must not include that facility among those facilities receiving less
than three reviews during the current year, in accordance with Sec.
226.16(d)(4), and must ensure that any facility submitting a block claim
receives an unannounced review within 60 days of the discovery of the
block claim. If, in the course of conducting this review, the sponsoring
organization determines that there is a logical explanation for the
facility to regularly submit a block claim, the sponsoring organization
must note this in the facility's review file and is not required to
conduct an unannounced visit after other block claims detected during
the current year. In addition, if a State agency determines that the
conduct of all required unannounced reviews within 60 days will impose
unwarranted burdens on a particular sponsoring organization, the State
agency may provide that sponsoring organization with up to 30 additional
days to complete the required unannounced reviews.
(d) All records to support the claim shall be retained for a period
of three years after the date of submission of the final claim for the
fiscal year to which they pertain, except that if audit findings have
not been resolved, the records shall be retained beyond the end of the
three year period as long as may be required for the resolution of the
issues raised by the audit. All accounts and records pertaining to the
Program shall be made available, upon request, to representatives of the
State agency, of the Department, and of the U.S. General Accounting
Office for audit or review, at a reasonable time and place.
(e) Unless otherwise approved by FNS, the Claim for Reimbursement
for any month shall cover only Program operations for that month except
if the first or last month of Program operations in any fiscal year
contains 10 operating days or less, such month may be added to the Claim
for Reimbursement for the appropriate adjacent month; however, Claims
for Reimbursement may not combine operations occurring in two fiscal
years. A final Claim for Reimbursement shall be postmarked and/or
submitted to the State agency not later than 60 days following the last
day of the full month covered by the claim. State agencies may establish
shorter deadlines at their discretion. Claims not postmarked and/or
submitted within 60 days shall not be paid with Program funds unless FNS
determines that an exception should be granted. The State agency shall
promptly take corrective action with respect to any Claim for
Reimbursement as determined necessary through its claim review process
or otherwise. In taking such corrective action, State agencies may make
upward adjustments in Program funds claimed on claims filed within the
60 day deadline if such adjustments are completed within 90 days of the
last day of the claim month and are reflected in the final Report of the
Child and Adult Care Food Programs (FNS-44) for the claim month which is
required under 226.7(d). Upward adjustments in Program funds claimed
which are not reflected in the final FNS-44 for the claim month shall
not be made unless authorized by FNS. Downward adjustments in Program
funds claimed shall always be made without FNS authorization regardless
of when it is determined that such adjustments are necessary.
(f) If, based on the results of audits, investigations, or other
reviews, a State agency has reason to believe that
[[Page 226]]
an institution, child or adult care facility, or food service management
company has engaged in unlawful acts with respect to Program operations,
the evidence found in audits, investigations, or other reviews is a
basis for non-payment of claims for reimbursement.
[47 FR 36527, Aug. 20, 1982, as amended by Amdt. 5, 49 FR 18988, May 4,
1984; 50 FR 26975, July 1, 1985; 53 FR 52590, Dec. 28, 1988; Amdt. 22,
55 FR 1378, Jan. 14, 1990; 62 FR 23618, May 1, 1997; 69 FR 53543, Sept.
1, 2004; 70 FR 43261, July 27, 2005; 71 FR 39519, July 13, 2006; 72 FR
41607, July 31, 2007]
Sec. 226.11 Program payments for centers.
(a) Requirement for agreements. Payments must be made only to
institutions operating under an agreement with the State agency for the
meal types specified in the agreement served at approved child care
centers, at-risk afterschool care centers, adult day care centers,
emergency shelters, and outside-school-hours care centers. A State
agency may develop a policy under which centers are reimbursed for meals
served in accordance with provisions of the Program in the calendar
month preceding the calendar month in which the agreement is executed,
or the State agency may develop a policy under which centers receive
reimbursement only for meals served in approved centers on and after the
effective date of the Program agreement. If the State agency's policy
permits centers to earn reimbursement for meals served prior to the
execution of a Program agreement, program reimbursement must not be
received by the center until the agreement is executed.
(b) Institutions--(1) Edit checks of sponsored centers. Prior to
submitting its consolidated monthly claim to the State agency, each
sponsoring organization must conduct reasonable edit checks on the
sponsored centers' meal claims, which at a minimum, must include those
edit checks specified at Sec. 226.10(c).
(2) Child and adult care institutions. Each child care institution
and each adult day care institution must report each month to the State
agency the total number of Program meals, by type (breakfasts, lunches,
suppers, and snacks), served to children or adult participants,
respectively, except as provided in paragraph (b)(3) of this section.
(3) For-profit center exception. For-profit child care centers,
including for-profit at-risk afterschool care centers and outside-
school-hours care centers, must provide the reports required in
paragraph (b)(2) of this section only for calendar months during which
at least 25 percent of the children in care (enrolled or licensed
capacity, whichever is less) were eligible for free or reduced-price
meals or were title XX beneficiaries. However, children who only
participate in an at-risk afterschool snack component of the Program
must not be considered in determining this percentage. For-profit adult
day care centers must provide the reports required in paragraph (b)(2)
of this section only for calendar months during which at least 25
percent of enrolled adult participants were beneficiaries of title XIX,
title XX, or a combination of titles XIX and XX.
(c) Reimbursement--(1) Child and adult care institutions. Each State
agency must base reimbursement to each approved child care institution
and adult day care institution on actual time of service meal counts of
meals, by type, served to children or adult participants multiplied by
the assigned rates of reimbursement, except as provided in paragraph
(c)(4) of this section.
(2) At-risk afterschool care centers. Each State agency must base
reimbursement to each at-risk afterschool care center on the number of
snacks served to children multiplied by the free rate for snacks, except
as provided in paragraph (c)(4) of this section.
(3) Emergency shelters. Each State agency must base reimbursement to
each emergency shelter on the number of meals served to children
multiplied by the free rates for meals and snacks.
(4) For-profit center exception. For-profit child care centers,
including for-profit at-risk and outside-school-hours care centers, must
be reimbursed only for the calendar months during which at least 25
percent of the children in care (enrolled or licensed capacity,
whichever is less) were eligible for free or reduced-price meals or were
title XX beneficiaries. However, children who
[[Page 227]]
only participate in an at-risk afterschool snack component of the
Program must not be considered in determining this percentage. For-
profit adult day care centers must be reimbursed only for the calendar
months during which at least 25 percent of enrolled adult participants
were beneficiaries of title XIX, title XX, or a combination of titles
XIX and XX.
(5) Computation of reimbursement. Except for at-risk afterschool
care centers and emergency shelters, the State agency must compute
reimbursement by either:
(i) Actual counts. Base reimbursement to institutions on actual time
of service counts of meals served, and multiply the number of meals, by
type, served to participants that are eligible to receive free meals,
participants eligible to receive reduced-price meals, and participants
not eligible for free or reduced-price meals by the applicable national
average payment rate; or
(ii) Claiming percentages. Apply the applicable claiming percentage
or percentages to the total number of meals, by type, served to
participants and multiply the product or products by the assigned rate
of reimbursement for each meal type; or
(iii) Blended rates. Multiply the assigned blended per meal rate of
reimbursement by the total number of meals, by type, served to
participants.
(d) Limits on reimbursement. If the State agency elects to reimburse
its institutions according to the lesser of rates or actual costs, total
Program payments to an institution during any fiscal year, including any
cash payments in lieu of commodities, shall not exceed allowable Program
operating and administrative costs, less income to the Program. The
State agency may limit payments for administrative costs to the amount
approved in the annual administrative budget of the institution. The
State agency may prohibit an institution from using payments for
operating costs to pay for administrative expenses.
(e) Institution recordkeeping. Each institution shall maintain
records as prescribed by the State agency's financial management system.
[47 FR 36527, Aug. 20, 1982, as amended at 48 FR 21530, May 13, 1983; 52
FR 36907, Oct. 2, 1987; 53 FR 52590, Dec. 28, 1988; 62 FR 23618, May 1,
1997; 69 FR 53543, Sept. 1, 2004; 70 FR 43262, July 27, 2005; 71 FR 5,
Jan. 3, 2006; 72 FR 41607, July 31, 2007]
Sec. 226.12 Administrative payments to sponsoring organizations for day care homes.
(a) General. Sponsoring organizations for day care homes shall
receive payments for administrative costs. During any fiscal year,
administrative costs payments to a sponsoring organization may not
exceed the lesser of (1) actual expenditures for the costs of
administering the Program less income to the Program, or (2) the amount
of administrative costs approved by the State agency in the sponsoring
organization's budget, or (3) the sum of the products obtained by
multiplying each month the sponsoring organization's:
(i) Initial 50 day care homes by 42 dollars;
(ii) Next 150 day care homes by 32 dollars;
(iii) Next 800 day care homes by 25 dollars; and
(iv) Additional day care homes by 22 dollars.
During any fiscal year, administrative payments to a sponsoring
organization may not exceed 30 percent of the total amount of
administrative payments and food service payments for day care home
operations.
(b) Start-up and expansion payments. (1) Prospective sponsoring
organizations of day care homes, participating sponsoring organizations
of child care centers or outside-school-hours care centers, independent
centers, and participating sponsoring organizations of less than 50
homes which meet the criteria in paragraph (b)(2) of this section shall
be entitled to receive start-up payments to develop or expand successful
Program operations in day care homes. Participating sponsoring
organizations of day care homes which meet the criteria in paragraph
(b)(2) of this section shall be entitled to receive expansion payments
to initiate or expand Program operations in day care homes in low-income
or rural areas.
[[Page 228]]
The State agency shall approve start-up payments only once for any
eligible sponsoring organization, but may approve expansion payments for
any eligible sponsoring organization more than once, provided that: the
request must be for expansion into an area(s) other than that specified
in their initial or prior request; and 12 months has elapsed since the
sponsoring organization has satisfied all obligations under its initial
or prior expansion agreement. Eligible sponsoring organizations which
have received start-up payments shall be eligible to apply for expansion
payments at a date no earlier than 12 months after it has satisfied all
its obligations under its start-up agreement with the State agency.
(2) Sponsoring organizations which apply for start-up or expansion
payments shall evidence:
(i) Public status or tax exempt status under the Internal Revenue
Code of 1986;
(ii) An organizational history of managing funds and ongoing
activities (i.e., administering public or private programs);
(iii) An acceptable and realistic plan for recruiting day care homes
to participate in the Program (such as the method of contacting
providers), which may be based on estimates of the number of day care
homes to be recruited and information supporting their existence, and in
the case of sponsoring organizations applying for expansion payments,
documentation that the day care homes to be recruited are located in
low-income or rural areas; and
(iv) An acceptable preliminary sponsoring organization management
plan including, but not limited to, plans for preoperational visits and
training.
(3) The State agency shall deny start-up and expansion payments to
applicant sponsoring organizations which fail to meet the criteria of
paragraph (b)(2) of this section or which have not been financially
responsible in the operation of other programs funded by Federal, State,
or local governments. The State agency shall notify the sponsoring
organization of the reasons for denial and allow the sponsoring
organization full opportunity to submit evidence on appeal as provided
for in Sec. 226.6(k). Any sponsoring organization applying for start-up
or expansion funds shall be notified of approval or disapproval by the
State agency in writing within 30 calendar days of filing a complete and
correct application. If a sponsoring organization submits an incomplete
application, the State agency shall notify the sponsoring organization
within 15 calendar days of receipt of the application and shall provide
technical assistance, if necessary, to the sponsoring organization for
the purpose of completing its application.
(4) Sponsoring organizations which apply for and meet the criteria
for start-up or expansion payments shall enter into an agreement with
the State agency. The agreement shall specify:
(i) Activities which the sponsoring organization will undertake to
initiate or expand Program operations in day care homes;
(ii) The amount of start-up or expansion payments to be issued to
the sponsoring organization, together with an administrative budget
detailing the costs which the sponsoring organization shall incur,
document, and claim;
(iii) The time allotted to the sponsoring organization for the
initiation or expansion of Program operations in family day care homes;
(iv) The responsibility of the applicant sponsoring organization to
repay, upon demand by the State agency, start-up or expansion payments
not expended in accordance with the agreement.
(5) Upon execution of the agreement, the State agency shall issue a
start-up or expansion payment to the sponsoring organization in an
amount equal to not less than one, but not more than two month's
anticipated administrative reimbursement to the sponsoring organization
as determined by the State agency. However, no sponsoring organization
may receive start-up or expansion payments for more than 50 day care
homes. Eligible sponsoring organizations with fewer than 50 homes under
their jurisdiction at the time of application for start-up payments may
receive such payments for up to 50 homes, less the number of homes under
their jurisdiction. Eligible sponsoring organizations applying for
expansion funds may receive at a maximum such
[[Page 229]]
payments for up to 50 homes at the currently assigned administrative
payment for the first 50 homes. In determining the amount of start-up or
expansion payments to be made to a sponsoring organization, the State
agency shall consider the anticipated level of start-up or expansion
costs to be incurred by the sponsoring organization and alternate
sources of funds available to the sponsoring organization.
(6) Upon expiration of the time allotted to the sponsoring
organization for initiating or expanding Program operations in day care
homes, the State agency shall obtain and review documentation of
activities performed and costs incurred by the sponsoring organization
under the terms of the start-up or expansion agreement. If the
sponsoring organization has not made every reasonable effort to carry
out the activities specified in the agreement, the State agency shall
demand repayment of all or part of the payment. The sponsoring
organization may retain start-up or expansion payments for all day care
homes which initiate Program operations. However, no sponsoring
organization may retain any start-up or expansion payments in excess of
its actual costs for the expenditures specified in the agreement.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
53 FR 52590, Dec. 28, 1988; 63 FR 9728, Feb. 26, 1998; 67 FR 43490, June
27, 2002]
Sec. 226.13 Food service payments to sponsoring organizations for day care homes.
(a) Payments shall be made only to sponsoring organizations
operating under an agreement with the State agency for the meal types
specified in the agreement served to enrolled nonresident children and
eligible enrolled children of day care home providers, at approved day
care homes.
(b) Each sponsoring organization shall report each month to the
State agency the total number of meals, by type (breakfasts, lunches,
suppers, and snacks) and by category (tier I and tier II), served to
children enrolled in approved day care homes. Prior to submitting its
consolidated monthly claim to the State agency, each sponsoring
organization must conduct reasonable edit checks on the day care homes'
meal claims which, at a minimum, include those edit checks specified at
Sec. 226.10(c).
(c) Each sponsoring organization shall receive payment for meals
served to children enrolled in approved day care homes at the tier I and
tier II reimbursement rates, as applicable based on daily meal counts
taken in the home, and as established by law and adjusted in accordance
with Sec. 226.4. However, the rates for lunches and suppers shall be
reduced by the value of commodities established under Sec. 226.5(b) for
all sponsoring organizations for day care homes which have elected to
receive commodities. For tier I day care homes, the full amount of food
service payments shall be disbursed to each day care home on the basis
of the number of meals served, by type, to enrolled children. For tier
II day care homes, the full amount of food service payments shall be
disbursed to each day care home on the basis of the number of meals
served to enrolled children by type, and by category (tier I and tier
II) as determined in accordance with paragraphs (d)(2) and (d)(3) of
this section. However, the sponsoring organization may withhold from
Program payments to each home an amount equal to costs incurred for the
provision of Program foodstuffs or meals by the sponsoring organization
on behalf of the home and with the home provider's written consent.
(d) As applicable, each sponsoring organization for day care homes
shall:
(1) Require that tier I day care homes submit the number of meals
served, by type, to enrolled children.
(2) Require that tier II day care homes in which the provider elects
not to have the sponsoring organization identify enrolled children who
are eligible for free or reduced price meals submit the number of meals
served, by type, to enrolled children.
(3) Not more frequently than annually, select one of the methods
described in paragraphs (d)(3) (i)-(iii) of this section for all tier II
day care homes in which the provider elects to have the sponsoring
organization identify enrolled children who are eligible for free or
reduced price meals. In such
[[Page 230]]
homes, the sponsoring organization shall either:
(i) Require that such day care homes submit the number and types of
meals served each day to each enrolled child by name. The sponsoring
organization shall use the information submitted by the homes to produce
an actual count, by type and by category (tier I and tier II), of meals
served in the homes; or
(ii) Establish claiming percentages, not less frequently than
semiannually, for each such day care home on the basis of one month's
data concerning the number of enrolled children determined eligible for
free or reduced-price meals. Sponsoring organizations shall obtain one
month's data by collecting either enrollment lists (which show the name
of each enrolled child in the day care home), or attendance lists (which
show, by days or meals, the rate of participation of each enrolled child
in the day care home). The State agency may require a sponsoring
organization to recalculate the claiming percentage for any of its day
care homes before the required semiannual calculation if the State
agency has reason to believe that a home's percentage of income-eligible
children has changed significantly or was incorrectly established in the
previous calculation. Under this system, day care homes shall be
required to submit the number of meals served, by type, to enrolled
children; or
(iii) Determine a blended per-meal rate of reimbursement, not less
frequently than semiannually, for each such day care home by adding the
products obtained by multiplying the applicable rates of reimbursement
for each category (tier I and tier II) by the claiming percentage for
that category, as established in accordance with paragraph (d)(3)(ii) of
this section. The State agency may require a sponsoring organization to
recalculate the blended rate for any of its day care homes before the
required semiannual calculation if the State agency has reason to
believe that a home's percentage of income-eligible children has changed
significantly or was incorrectly established in the previous
calculation. Under this system, day care homes shall be required to
submit the number of meals served, by type, to enrolled children.
[47 FR 36527, Aug. 20, 1982, as amended at 62 FR 903, Jan. 7, 1997; 62
FR 5519, Feb. 6, 1997; 63 FR 9105, Feb. 24, 1998; 69 FR 53544, Sept. 1,
2004; 72 FR 41603, July 31, 2007]
Sec. 226.14 Claims against institutions.
(a) State agencies shall disallow any portion of a claim for
reimbursement and recover any payment to an institution not properly
payable under this part. State agencies may consider claims for
reimbursement not properly payable if an institution does not comply
with the recordkeeping requirements contained in this part. The State
agency may permit institutions to pay overclaims over a period of one or
more years. However, the State agency must assess interest beginning
with the initial demand for remittance. Further, when an institution
requests and is granted an administrative review of the State agency's
overpayment demand, the State agency is prohibited from taking action to
collect or offset the overpayment until the administrative review is
concluded. The State agency must maintain searchable records of funds
recovery activities. If the State agency determines that a sponsoring
organization of centers has spent more than 15 percent of its meal
reimbursements for a budget year for administrative costs (or more than
any higher limit established pursuant to a waiver granted under Sec.
226.7(g)), the State agency must take appropriate fiscal action. In
addition, except with approval from the appropriate FNSRO, State
agencies shall consider claims for reimbursement not payable when an
institution fails to comply with the recordkeeping requirements that
pertain to records directly supporting claims for reimbursement. Records
that directly support claims for reimbursement include, but are not
limited to, daily meal counts, menu records, and enrollment and
attendance records, as required by Sec. 226.15(e). State agencies shall
assert overclaims against any sponsoring organization of day care homes
which misclassifies a day care home as a tier I day care home unless the
misclassification is determined to be inadvertent under guidance issued
by
[[Page 231]]
FNS. However, the State agency shall notify the institution of the
reasons for any disallowance or demand for repayment, and allow the
institution full opportunity to submit evidence on appeal as provided
for in Sec. 226.6(k). Miminum State agency collection procedures for
unearned payments shall include:
(1) Written demand to the institution for the return of improper
payments; (2) if, after 30 calendar days, the institution fails to remit
full payment or agree to a satisfactory repayment schedule, a second
written demand for the return of improper payments sent by certified
mail return receipt requested; and (3) if, after 60 calendar days, the
institution fails to remit full payment or agree to a satisfactory
repayment schedule, the State agency shall refer the claim against the
institution to appropriate State or Federal authorities for pursuit of
legal remedies.
(b) In the event that the State agency finds that an institution
which prepares its own meals is failing to meet the meal requirements of
Sec. 226.20, the State agency need not disallow payment or collect an
overpayment arising out of such failure if the institution takes such
other action as, in the opinion of the State agency, will have a
corrective effect. However, the State agency shall not disregard any
overpayments or waive collection action arising from the findings of
Federal audits.
(c) If FNS does not concur with the State agency's action in paying
an institution or in failing to collect an overpayment, FNS shall notify
the State agency of its intention to assert a claim against the State
agency. In all such cases, the State agency shall have full opportunity
to submit evidence concerning the action taken. The State agency shall
be liable to FNS for failure to collect an overpayment, unless FNS
determines that the State agency has conformed with this part in issuing
the payment and has exerted reasonable efforts to recover the improper
payment.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
50 FR 8580, Mar. 4, 1985; 53 FR 52590, Dec. 28, 1988; 62 FR 903, Jan. 7,
1997; 64 FR 72260, Dec. 27, 1999; 67 FR 43490, June 27, 2002; 69 FR
53544, Sept. 1, 2004]
Subpart E_Operational Provisions
Sec. 226.15 Institution provisions.
(a) Tax exempt status. Except for for-profit centers and sponsoring
organizations of such centers, institutions must be public, or have tax
exempt status under the Internal Revenue Code of 1986.
(b) New applications and renewals. Each institution must submit to
the State agency with its application all information required for its
approval as set forth in Sec. 226.6(b) and 226.6(f). Such information
must demonstrate that a new institution has the administrative and
financial capability to operate the Program in accordance with this part
and with the performance standards set forth in Sec.
226.6(b)(1)(xviii), and that a renewing institution has the
administrative and financial capability to operate the Program in
accordance with this part and with the performance standards set forth
in Sec. 226.6(b)(2)(vii).
(c) Responsibility. Each institution shall accept final
administrative and financial responsibility for Program operations. No
institution may contract out for management of the Program.
(d) Staffing. Each institution shall provide adequate supervisory
and operational personnel for management and monitoring of the Program.
(e) Recordkeeping. Each institution shall establish procedures to
collect and maintain all program records required under this part, as
well as any records required by the State agency. Failure to maintain
such records shall be grounds for the denial of reimbursement for meals
served during the period covered by the records in question and for the
denial of reimbursement for costs associated with such records. At a
minimum, the following records shall be collected and maintained:
(1) Copies of all applications and supporting documents submitted to
the State agency;
(2) Documentation of the enrollment of each participant at centers
(except for outside-school-hours care centers, emergency shelters, and
at-risk afterschool care centers). All types of centers, except for
emergency shelters and at-risk afterschool care centers, must
[[Page 232]]
maintain information used to determine eligibility for free or reduced-
price meals in accordance with Sec. 226.23(e)(1). For child care
centers, such documentation of enrollment must be updated annually,
signed by a parent or legal guardian, and include information on each
child's normal days and hours of care and the meals normally received
while in care.
(3) Documentation of: The enrollment of each child at day care
homes; information used to determine the eligibility of enrolled
providers' children for free or reduced price meals; information used to
classify day care homes as tier I day care homes, including official
source documentation obtained from school officials when the
classification is based on elementary school data; and information used
to determine the eligibility of enrolled children in tier II day care
homes that have been identified as eligible for free or reduced price
meals in accordance with Sec. 226.23(e)(1). Such documentation of
enrollment must be updated annually, signed by a parent or legal
guardian, and include information on each child's normal days and hours
of care and the meals normally received while in care.
(4) Daily records indicating the number of participants in
attendance and the daily meal counts, by type (breakfast, lunch, supper,
and snacks), served to family day care home participants, or the time of
service meal counts, by type (breakfast, lunch, supper, and snacks),
served to center participants. State agencies may require family day
care homes to record meal counts at the time of meal service only in day
care homes providing care for more than 12 children in a single day, or
in day care homes that have been found seriously deficient due to
problems with their meal counts and claims.
(5) Except at day care homes, daily records indicating the number of
meals, by type, served to adults performing labor necessary to the food
service;
(6) Copies of invoices, receipts, or other records required by the
State agency financial management instruction to document:
(i) Administrative costs claimed by the institution;
(ii) Operating costs claimed by the institution except sponsoring
organizations of day care homes; and
(iii) Income to the Program.
(7) Copies of all claims for reimbursement submitted to the State
agency;
(8) Receipts for all Program payments received from the State
agency;
(9) If applicable, information concerning the dates and amounts of
disbursement to each child care facility or adult day care facility
under its auspices;
(10) Copies of menus, and any other food service records required by
the State agency;
(11) If applicable, information concerning the location and dates of
each child care or adult day care facility review, any problems noted,
and the corrective action prescribed and effected;
(12) Information on training session date(s) and location(s), as
well as topics presented and names of participants; and
(13) Documentation of nonprofit food service to ensure that all
Program reimbursement funds are used: (i) Solely for the conduct of the
food service operation; or (ii) to improve such food service operations,
principally for the benefit of the enrolled participants.
(14) For sponsoring organizations, records documenting the
attendance at training of each staff member with monitoring
responsibilities. Training must include instruction, appropriate to the
level of staff experience and duties, on the Program's meal patterns,
meal counts, claims submission and claim review procedures,
recordkeeping requirements, and an explanation of the Program's
reimbursement system.
(f) Day care home classifications. Each sponsoring organization of
day care homes shall determine which of the day care homes under its
sponsorship are eligible as tier I day care homes. A sponsoring
organization may use current school or census data provided by the State
agency or free and reduced price applications collected from day care
home providers in making a determination for each day care home. When
using elementary school or census data for making tier I day care home
determinations, a sponsoring organization shall first consult school
data, except in cases in which busing or other bases
[[Page 233]]
of attendance, such as magnet or charter schools, result in school data
not being representative of an attendance area's household income
levels. In these cases, census data should generally be consulted
instead of school data. A sponsoring organization may also use census
data if, after reasonable efforts are made, as defined by the State
agency, the sponsoring organization is unable to obtain local elementary
school attendance area information. A sponsoring organization may also
consult census data after having consulted school data which fails to
support a tier I day care home determination for rural areas with
geographically large elementary school attendance areas, for other areas
in which an elementary school's free and reduced price enrollment is
above 40 percent, or in other cases with State agency approval. However,
if a sponsoring organization believes that a segment of an otherwise
eligible elementary school attendance area is above the criteria for
free or reduced price meals, then the sponsoring organization shall
consult census data to determine whether the homes in that area qualify
as tier I day care homes based on census data. If census data does not
support a tier I classification, then the sponsoring organization shall
reclassify homes in segments of such areas as tier II day care homes
unless the individual providers can document tier I eligibility on the
basis of their household income. When making tier I day care home
determinations based on school data, a sponsoring organization shall use
attendance area information that it has obtained, or verified with
appropriate school officials to be current, within the last school year.
Determinations of a day care home's eligibility as a tier I day care
home shall be valid for one year if based on a provider's household
income, five years if based on school data, or until more current data
are available if based on census data. However, a sponsoring
organization, State agency, or FNS may change the determination if
information becomes available indicating that a home is no longer in a
qualified area. The State agency shall not routinely require annual
redeterminations of the tiering status of tier I day care homes based on
updated elementary school data.
(g) Area eligibility determinations for at-risk afterschool care
centers. Sponsoring organizations of at-risk afterschool care centers
must provide information, as required by the State agency, which permits
the State agency to determine whether the centers they sponsor are
located in eligible areas. Such information may include the most recent
free and reduced-price school data available pursuant to Sec.
226.6(f)(1)(ix) and attendance area information that it has obtained, or
verified with the appropriate school officials to be current, within the
last school year.
(h) Payment to employees. No institution that is a sponsoring
organization of family day care homes and that employs more than one
person is permitted to base payment (including bonuses or gratuities) to
its employees, contractors, or family day care home providers solely on
the number of new family day care homes recruited for the sponsoring
organization's Program.
(i) Claims submission. Each institution shall submit claims for
reimbursement to the State agency in accordance with Sec. 226.10.
(j) Program agreement. Each institution shall enter into a Program
agreement with the State agency in accordance with Sec. 226.6(b)(4).
(k) Commodities. Each institution receiving commodities shall ensure
proper commodity utilization.
(l) Special Milk Program. No institution may participate in both the
Child and Adult Care Food Program and the Special Milk Program at the
same time.
(m) Elderly feeding programs. Institutions which are school food
authorities (as defined in part 210 of this chapter) may use facilities,
equipment and personnel supported by funds provided under this part to
support a nonprofit nutrition program for the elderly, including a
program funded under the Older Americans Act of 1965 (42 U.S.C. 3001 et
seq.).
(n) Regulations and guidance. Each institution must comply with all
regulations issued by FNS and the Department, all instructions and
handbooks issued by FNS and the Department to
[[Page 234]]
clarify or explain existing regulations, and all regulations,
instructions and handbooks issued by the State agency that are
consistent with the provisions established in Program regulations.
(o) Information on WIC. Each institution must ensure that parents of
enrolled children are provided with current information on the benefits
and importance of the Special Supplemental Nutrition Program for Women,
Infants, and Children (WIC) and the eligibility requirements for WIC
participation.
[47 FR 36527, Aug. 20, 1982]
Editorial Note: For Federal Register citations affecting Sec.
226.15, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 226.16 Sponsoring organization provisions.
(a) Each sponsoring organization shall comply with all provisions of
Sec. 226.15.
(b) Each sponsoring organization must submit to the State agency
with its application all information required for its approval, and the
approval of the facilities under its jurisdiction, as set forth in
Sec. Sec. 226.6(b) and 226.6(f). The application must demonstrate that
the institution has the administrative and financial capability to
operate the Program in accordance with the Program regulations. In
addition to the information required in Sec. Sec. 226.6(b) and
226.6(f), the application must include:
(1) A sponsoring organization management plan and administrative
budget, in accordance with Sec. Sec. 226.6(b)(1)(iv), 226.6(b)(1)(v),
226.6(b)(2)(i), 226.6(f)(2)(i), and 226.7(g), which includes information
sufficient to document the sponsoring organization's compliance with the
performance standards set forth at Sec. 226.6(b)(1)(xviii) and
226.6(b)(2)(vii). As part of its management plan, a sponsoring
organization of day care homes must document that, to perform
monitoring, it will employ the equivalent of one full-time staff person
for each 50 to 150 day care homes it sponsors. As part of its management
plan, a sponsoring organization of centers must document that, to
perform monitoring, it will employ the equivalent of one full-time staff
person for each 25 to 150 centers it sponsors. It is the State agency's
responsibility to determine the appropriate level of staffing for
monitoring for each sponsoring organization, consistent with these
specified ranges and factors that the State agency will use to determine
the appropriate level of monitoring staff for each sponsor. The
monitoring staff equivalent may include the employee's time spent on
scheduling, travel time, review time, follow-up activity, report
writing, and activities related to the annual updating of children's
enrollment forms. Sponsoring organizations that were participating in
the Program on July 29, 2002, were to have submitted, no later than July
29, 2003, a management plan or plan amendment that meets the monitoring
staffing requirement. For sponsoring organizations of centers, the
portion of the administrative costs to be charged to the Program may not
exceed 15 percent of the meal reimbursements estimated or actually
earned during the budget year, unless the State agency grants a waiver
in accordance with Sec. 226.7(g). A sponsoring organization of centers
must include in the administrative budget all administrative costs,
whether incurred by the sponsoring organization or its sponsored
centers. If at any point a sponsoring organization determines that the
meal reimbursements estimated to be earned during the budget year will
be lower than that estimated in its administrative budget, the
sponsoring organization must amend its administrative budget to stay
within the 15 percent limitation (or any higher limit established
pursuant to a waiver granted under Sec. 226.7(g)) or seek a waiver.
Failure to do so will result in appropriate fiscal action in accordance
with Sec. 226.14(a).
(2) An application for participation, or renewal materials, for each
child care and adult day care facility accompanied by all necessary
supporting documentation;
(3) Timely information concerning the eligibility status of child
care and adult day care facilities (such as licensing/approval actions);
(4) For sponsoring organizations applying for initial participation
on or after June 20, 2000, if required by State law, regulation, or
policy, a bond in the
[[Page 235]]
form prescribed by such law, regulation, or policy;
(5) A copy of the sponsoring organization's notice to parents, in a
form and, to the maximum extent practicable, language easily
understandable by the participant's parents or guardians. The notice
must inform them of their facility's participation in CACFP, the
Program's benefits, the name and telephone number of the sponsoring
organization, and the name and telephone number of the State agency
responsible for administration of CACFP;
(6) If the sponsoring organization chooses to establish procedures
for determining a day care home seriously deficient that supplement the
procedures in paragraph (l) of this section, a copy of those
supplemental procedures. If the State agency has made the sponsoring
organization responsible for the administrative review of a proposed
termination of a day care home's agreement for cause, pursuant to Sec.
226.6(l)(1), a copy of the sponsoring organization's administrative
review procedures. The sponsoring organization's supplemental serious
deficiency and administrative review procedures must comply with
paragraph (l) of this section and Sec. 226.6(l);
(7) A copy of their outside employment policy. The policy must
restrict other employment by employees that interferes with an
employee's performance of Program-related duties and responsibilities,
including outside employment that constitutes a real or apparent
conflict of interest; and
(8) For sponsoring organizations of day care homes, the name,
mailing address, and date of birth of each provider.
(c) Each sponsoring organization shall accept final administrative
and financial responsibility for food service operations in all child
care and adult day care facilities under its jurisdiction.
(d) Each sponsoring organization must provide adequate supervisory
and operational personnel for the effective management and monitoring of
the program at all facilities it sponsors. Each sponsoring organization
must employ monitoring staff sufficient to meet the requirements of
paragraph (b)(1) of this section. At a minimum, Program assistance must
include:
(1) Pre-approval visits to each child care and adult day care
facility for which application is made to discuss Program benefits and
verify that the proposed food service does not exceed the capability of
the child care facility;
(2) Training on Program duties and responsibilities to key staff
from all sponsored facilities prior to the beginning of Program
operations. At a minimum, such training must include instruction,
appropriate to the level of staff experience and duties, on the
Program's meal patterns, meal counts, claims submission and review
procedures, recordkeeping requirements, and reimbursement system.
Attendance by key staff, as defined by the State agency, is mandatory;
(3) Additional mandatory training sessions for key staff from all
sponsored child care and adult day care facilities not less frequently
than annually. At a minimum, such training must include instruction,
appropriate to the level of staff experience and duties, on the
Program's meal patterns, meal counts, claims submission and review
procedures, recordkeeping requirements, and reimbursement system.
Attendance by key staff, as defined by the State agency, is mandatory;
(4)(i) Review elements. Reviews that assess whether the facility has
corrected problems noted on the previous review(s), a reconciliation of
the facility's meal counts with enrollment and attendance records for a
five-day period, as specified in paragraph (d)(4)(ii) of this section,
and an assessment of the facility's compliance with the Program
requirements pertaining to:
(A) The meal pattern;
(B) Licensing or approval;
(C) Attendance at training;
(D) Meal counts;
(E) Menu and meal records; and
(F) The annual updating and content of enrollment forms (if the
facility is required to have enrollment forms on file, as specified in
Sec. 226.15(e)(2) and 226.15(e)(3)).
(ii) Reconciliation of meal counts. Reviews must examine the meal
counts recorded by the facility for five consecutive days during the
current and/or
[[Page 236]]
prior claiming period. For each day examined, reviewers must use
enrollment and/or attendance records to determine the number of children
in care during each meal service and attempt to reconcile those numbers
to the numbers of breakfasts, lunches, suppers, and/or snacks recorded
in the facility's meal count for that day. Based on that comparison,
reviewers must determine whether the meal counts were accurate. If there
is a discrepancy between the number of children enrolled or in
attendance on the day of review and prior meal counting patterns, the
reviewer must attempt to reconcile the difference and determine whether
the establishment of an overclaim is necessary.
(iii) Frequency and type of required facility reviews. Sponsoring
organizations must review each facility three times each year, except as
described in paragraph (d)(4)(iv) of this section. In addition:
(A) At least two of the three reviews must be unannounced;
(B) At least one unannounced review must include observation of a
meal service;
(C) At least one review must be made during each new facility's
first four weeks of Program operations; and
(D) Not more than six months may elapse between reviews.
(iv) Averaging of required reviews. If a sponsoring organization
conducts two unannounced reviews of a facility in a year and finds no
serious deficiencies (as described in paragraph (l)(2) of this section,
regardless of the type of facility), the sponsoring organization may
choose not to conduct a third review of the facility that year, provided
that the sponsoring organization conducts an average of three reviews of
all of its facilities that year. When the sponsoring organization uses
this averaging provision, and a specific facility receives two reviews
in one review year, its first review in the next review year must occur
no more than nine months after the previous review. Sponsoring
organizations may not review a sponsored facility fewer than three times
per year if the facility has submitted a block claim during the year.
(v) Follow-up reviews. If, in conducting a facility review, a
sponsoring organization detects one or more serious deficiency, the next
review of that facility must be unannounced. Serious deficiencies are
those described at paragraph (l)(2) of this section, regardless of the
type of facility.
(vi) Notification of unannounced reviews. Sponsoring organizations
of centers must provide each center with written notification of the
right of the sponsoring organization, the State agency, the Department,
and other State and Federal officials to make announced or unannounced
reviews of its operations during the center's normal hours of operation,
and must also notify sponsored centers that anyone making such reviews
must show photo identification that demonstrates that they are employees
of one of these entities. For sponsored centers participating on July
29, 2002, the sponsoring organization was to have provided this notice
no later than August 29, 2002. For sponsored centers that are approved
after July 29, 2002, the sponsoring organization must provide the notice
before meal service under the Program begins. Sponsoring organizations
must provide day care homes notification of unannounced visits in
accordance with Sec. 226.18(b)(1).
(vii) Other requirements pertaining to unannounced reviews.
Unannounced reviews must be made only during the facility's normal hours
of operation, and monitors making such reviews must show photo
identification that demonstrates that they are employees of the
sponsoring organization, the State agency, the Department, or other
State and Federal agencies authorized to audit or investigate Program
operations.
(viii) Imminent threat to health or safety. Sponsoring organizations
that discover in a facility conduct or conditions that pose an imminent
threat to the health or safety of participating children or the public,
must immediately notify the appropriate State or local licensing or
health authorities and take action that is consistent with the
recommendations and requirements of those authorities.
(5) For sponsoring organizations, as part of their monitoring of
facilities, compliance with the household contact
[[Page 237]]
requirements established pursuant to Sec. 226.6(m)(5) of this part.
(e) Each sponsoring organization shall comply with the recordkeeping
requirements established in Sec. Sec. 226.10(d) and 226.15(e) and any
recordkeeping requirements established by the State agency in order to
justify the administrative payments made in accordance with Sec.
226.12(a). Failure to maintain such records shall be grounds for the
denial of reimbursement.
(f) The State agency may require a sponsoring organization to enter
into separate agreements for the administration of separate types of
facilities (child care centers, day care homes, adult day care centers,
emergency shelters, at-risk afterschool care centers, and outside-
school-hours care centers). However, if a school food authority provides
child care and is applying to participate in the Program, the State
agency must enter into a single permanent agreement, as specified in
Sec. 226.6(b)(4)(ii)(A).
(g) Each sponsoring organization electing to receive advance
payments of program funds for day care homes shall disburse the full
amount of such payments within five working days of receipt from the
State agency. If the sponsor requests the full operating advance to
which it is entitled, the advances to day care homes shall be the full
amount which the sponsor expects the home to earn based on the number of
meals projected to be served to enrolled children during the period
covered by the advance multiplied by the applicable payment rate as
specified in Sec. 226.13(c). If a sponsor elects to receive only a part
of the operating advance to which it is entitled, or if the full
operating advance is insufficient to provide a full advance to each
home, the advance shall be disbursed to its homes in a manner and an
amount the sponsor deems appropriate. Each sponsor shall disburse any
reimbursement payments for food service due to each day care home within
five working days of receipt from the State agency. Such payment shall
be based on the number of meals served to enrolled children at each day
care home, less any payments advanced to such home. However, the
sponsoring organization may withhold from Program payments to each home
an amount equal to food service operating costs incurred by the
sponsoring organization in behalf of the home and with the home
provider's written consent. If payments from the State agency are not
sufficient to provide all day care homes under the sponsoring
organization's jurisdiction with advance payments and reimbursement
payments, available monies shall be used to provide all due
reimbursement payments before advances are disbursed.
(h) Sponsoring organizations shall make payments of program funds to
child care centers, adult day care centers, emergency shelters, at-risk
afterschool care centers, or outside-school-hours care centers within
five working days of receipt from the State agency, on the basis of the
management plan approved by the State agency, and may not exceed the
Program costs documented at each facility during any fiscal year; except
in those States where the State agency has chosen the option to
implement a meals times rates payment system. In those States which
implement this optional method of reimbursement, such disbursements may
not exceed the rates times the number of meals documented at each
facility during any fiscal year.
(i) Disbursements of advance payments may be withheld from child and
adult day care facilities which fail to submit reports required by Sec.
226.15(e).
(j) A for-profit organization shall be eligible to serve as a
sponsoring organization for for-profit centers which have the same legal
identity as the organization, but shall not be eligible to sponsor for-
profit centers which are legally distinct from the organization, day
care homes, or public or private nonprofit centers.
(k) Before sponsoring organizations expend administrative funds to
assist family day care homes in becoming licensed, they shall obtain the
following information from each such home: a completed free and reduced
price application which documents that the provider meets the Program's
income standards; evidence of its application for licensing and official
documentation of the defects that are impeding its licensing approval;
and a completed
[[Page 238]]
CACFP application. These funding requests are limited to $300 per home
and are only available to each home once.
(l) Termination of agreements for cause--(1) General. The sponsoring
organization must initiate action to terminate the agreement of a day
care home for cause if the sponsoring organization determines the day
care home has committed one or more serious deficiency listed in
paragraph (l)(2) of this section.
(2) List of serious deficiencies for day care homes. Serious
deficiencies for day care homes are:
(i) Submission of false information on the application;
(ii) Submission of false claims for reimbursement;
(iii) Simultaneous participation under more than one sponsoring
organization;
(iv) Non-compliance with the Program meal pattern;
(v) Failure to keep required records;
(vi) Conduct or conditions that threaten the health or safety of a
child(ren) in care, or the public health or safety;
(vii) A determination that the day care home has been convicted of
any activity that occurred during the past seven years and that
indicated a lack of business integrity. A lack of business integrity
includes fraud, antitrust violations, embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false
statements, receiving stolen property, making false claims, obstruction
of justice, or any other activity indicating a lack of business
integrity as defined by the State agency, or the concealment of such a
conviction;
(viii) Failure to participate in training; or
(ix) Any other circumstance related to non-performance under the
sponsoring organization-day care home agreement, as specified by the
sponsoring organization or the State agency.
(3) Serious deficiency notification procedures. If the sponsoring
organization determines that a day care home has committed one or more
serious deficiency listed in paragraph (l)(2) of this section, the
sponsoring organization must use the following procedures to provide the
day care home notice of the serious deficiency(ies) and offer it an
opportunity to take corrective action. However, if the serious
deficiency(ies) constitutes an imminent threat to the health or safety
of participants, or the day care home has engaged in activities that
threaten the public health or safety, the sponsoring organization must
follow the procedures in paragraph (l)(4) of this section instead of
those in this paragraph (l)(3).
(i) Notice of serious deficiency. The sponsoring organization must
notify the day care home that it has been found to be seriously
deficient. The sponsoring organization must provide a copy of the
serious deficiency notice to the State agency. The notice must specify:
(A) The serious deficiency(ies);
(B) The actions to be taken by the day care home to correct the
serious deficiency(ies);
(C) The time allotted to correct the serious deficiency(ies) (as
soon as possible, but not to exceed 30 days);
(D) That the serious deficiency determination is not subject to
administrative review.
(E) That failure to fully and permanently correct the serious
deficiency(ies) within the allotted time will result in the
institution's proposed termination of the day care home's agreement and
the proposed disqualification of the day care home and its principals;
and
(F) That the day care home's voluntary termination of its agreement
with the institution after having been notified that it is seriously
deficient will still result in the day care home's formal termination by
the State institution and placement of the day care home and its
principals on the National disqualified list.
(ii) Successful corrective action. If the day care home corrects the
serious deficiency(ies) within the allotted time and to the sponsoring
organization's satisfaction, the sponsoring organization must notify the
day care home that it has rescinded its determination of serious
deficiency. The sponsoring organization must also provide a copy of the
notice to the State agency.
(iii) Proposed termination of agreement and proposed
disqualification. If timely
[[Page 239]]
corrective action is not taken to fully and permanently correct the
serious deficiency(ies) cited, the sponsoring organization must issue a
notice proposing to terminate the day care home's agreement for cause.
The notice must explain the day care home's opportunity for an
administrative review of the proposed termination in accordance with
Sec. 226.6(l). The sponsoring organization must provide a copy of the
notice to the State agency. The notice must:
(A) Inform the day care home that it may continue to participate and
receive Program reimbursement for eligible meals served until its
administrative review is concluded;
(B) Inform the day care home that termination of the day care home's
agreement will result in the day care home's termination for cause and
disqualification; and
(C) State that if the day care home seeks to voluntarily terminate
its agreement after receiving the notice of intent to terminate, the day
care home will still be placed on the National disqualified list.
(iv) Program payments. The sponsoring organization must continue to
pay any claims for reimbursement for eligible meals served until the
serious deficiency(ies) is corrected or the day care home's agreement is
terminated, including the period of any administrative review.
(v) Agreement termination and disqualification. The sponsoring
organization must immediately terminate the day care home's agreement
and disqualify the day care home when the administrative review official
upholds the sponsoring organization's proposed termination and proposed
disqualification, or when the day care home's opportunity to request an
administrative review expires. At the same time the notice is issued,
the sponsoring organization must provide a copy of the termination and
disqualification letter to the State agency.
(4) Suspension of participation for day care homes.
(i) General. If State or local health or licensing officials have
cited a day care home for serious health or safety violations, the
sponsoring organization must immediately suspend the home's CACFP
participation prior to any formal action to revoke the home's licensure
or approval. If the sponsoring organization determines that there is an
imminent threat to the health or safety of participants at a day care
home, or that the day care home has engaged in activities that threaten
the public health or safety, and the licensing agency cannot make an
immediate onsite visit, the sponsoring organization must immediately
notify the appropriate State or local licensing and health authorities
and take action that is consistent with the recommendations and
requirements of those authorities. An imminent threat to the health or
safety of participants and engaging in activities that threaten the
public health or safety constitute serious deficiencies; however, the
sponsoring organization must use the procedures in this paragraph (l)(4)
(and not the procedures in paragraph (l)(3) of this section) to provide
the day care home notice of the suspension of participation, serious
deficiency, and proposed termination of the day care home's agreement.
(ii) Notice of suspension, serious deficiency, and proposed
termination. The sponsoring organization must notify the day care home
that its participation has been suspended, that the day care home has
been determined seriously deficient, and that the sponsoring
organization proposes to terminate the day care home's agreement for
cause, and must provide a copy of the notice to the State agency. The
notice must:
(A) Specify the serious deficiency(ies) found and the day care
home's opportunity for an administrative review of the proposed
termination in accordance with Sec. 226.6(l);
(B) State that participation (including all Program payments) will
remain suspended until the administrative review is concluded;
(C) Inform the day care home that if the administrative review
official overturns the suspension, the day care home may claim
reimbursement for eligible meals served during the suspension;
(D) Inform the day care home that termination of the day care home's
agreement will result in the placement
[[Page 240]]
of the day care home on the National disqualified list; and
(E) State that if the day care home seeks to voluntarily terminate
its agreement after receiving the notice of proposed termination, the
day care home will still be terminated for cause and disqualified.
(iii) Agreement termination and disqualification. The sponsoring
organization must immediately terminate the day care home's agreement
and disqualify the day care home when the administrative review official
upholds the sponsoring organization's proposed termination, or when the
day care home's opportunity to request an administrative review expires.
(iv) Program payments. A sponsoring organization is prohibited from
making any Program payments to a day care home that has been suspended
until any administrative review of the proposed termination is
completed. If the suspended day care home prevails in the administrative
review of the proposed termination, the sponsoring organization must
reimburse the day care home for eligible meals served during the
suspension period.
(m) Sponsoring organizations of family day care homes must not make
payments to employees or contractors solely on the basis of the number
of homes recruited. However, such employees or contractors may be paid
or evaluated on the basis of recruitment activities accomplished.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
48 FR 21530, May 13, 1983; 50 FR 8580, Mar. 4, 1985; 50 FR 26975, July
1, 1985; 53 FR 52591, Dec. 28, 1988; 63 FR 9729, Feb. 26, 1998; 64 FR
72260, Dec. 27, 1999; 67 FR 43490, June 27, 2002; 69 FR 53544, Sept. 1,
2004; 71 FR 5, Jan. 3, 2006; 72 FR 41608, July 31, 2007]
Sec. 226.17 Child care center provisions.
(a) Child care centers may participate in the Program either as
independent centers or under the auspices of a sponsoring organization;
provided, however, that public and private nonprofit centers shall not
be eligible to participate in the Program under the auspices of a for-
profit sponsoring organization. Child care centers participating as
independent centers shall comply with the provisions of Sec. 226.15.
(b) All child care centers, independent or sponsored, shall meet the
following requirements
(1) Child care centers must have Federal, State, or local licensing
or approval to provide day care services to children. Child care
centers, which are complying with applicable procedures to renew
licensing or approval, may participate in the Program during the renewal
process, unless the State agency has information that indicates that
renewal will be denied. If licensing or approval is not available, a
child care center may participate if it demonstrates compliance with the
CACFP child care standards or any applicable State or local child care
standards to the State agency.
(2) Except for for-profit centers, child care centers shall be
public, or have tax exempt status under the Internal Revenue Code of
1986.
(3) Each child care center participating in the Program must serve
one or more of the following meal types--breakfast; lunch; supper; and
snack. Reimbursement must not be claimed for more than two meals and one
snack or one meal and two snacks provided daily to each child.
(4) Each child care center participating in the Program shall claim
only the meal types specified in its approved application in accordance
with the meal pattern requirements specified in Sec. 226.20. For-profit
child care centers may not claim reimbursement for meals served to
children in any month in which less than 25 percent of the children in
care (enrolled or licensed capacity, whichever is less) were eligible
for free or reduced price meals or were title XX beneficiaries. However,
children who only receive snacks in an approved afterschool care program
must not be included in this percentage. Menus and any other nutritional
records required by the State agency shall be maintained to document
compliance with such requirements.
(5) A child care center with preschool children may also be approved
to serve a breakfast, snack, and supper to school-age children
participating in an outside-school-hours care program meeting the
criteria of Sec. 226.19(b) that is distinct from its day care program
for preschool-age children. The State
[[Page 241]]
agency may authorize the service of lunch to such participating children
who attend a school that does not offer a lunch program, provided that
the limit of two meals and one snack, or one meal and two snacks, per
child per day is not exceeded.
(6) A child care center with preschool children may also be approved
to serve a snack to school age children participating in an afterschool
care program meeting the requirements of Sec. 226.17a that is distinct
from its day care program for preschool children, provided that the
limit of two meals, and one snack, or one meal and two snacks, per child
per day is not exceeded.
(7) A child care center may utilize existing school food service
facilities or obtain meals from a school food service facility, and the
pertinent requirements of this part shall be embodied in a written
agreement between the child care center and school. The center shall
maintain responsibility for all Program requirements set forth in this
part.
(8) Child care centers shall collect and maintain documentation of
the enrollment of each child, including information used to determine
eligibility for free and reduced price meals in accordance with Sec.
226.23(e)(1). In addition, Head Start participants need only have a Head
Start statement of income eligibility, or a statement of Head Start
enrollment from an authorized Head Start representative, to be eligible
for free meal benefits under the CACFP. Such documentation of enrollment
must be updated annually, signed by a parent or legal guardian, and
include information on each child's normal days and hours of care and
the meals normally received while in care.
(9) Each child care center must maintain daily records of time of
service meal counts by type (breakfast, lunch, supper, and snacks)
served to enrolled children, and to adults performing labor necessary to
the food service.
(10) Each child care center must require key staff, as defined by
the State agency, to attend Program training prior to the center's
participation in the Program, and at least annually thereafter, on
content areas established by the State agency.
(c) Each child care center shall comply with the recordkeeping
requirements established in Sec. 226.10(d), in paragraph (b) of this
section and, if applicable, in Sec. 226.15(e). Failure to maintain such
records shall be grounds for the denial of reimbursement.
(d) If so instructed by its sponsoring organization, a sponsored
center must distribute to parents a copy of the sponsoring
organization's notice to parents.
[47 FR 36527, Aug. 20, 1982, as amended at 52 FR 36907, Oct. 2, 1987; 53
FR 52591, Dec. 28, 1988; 54 FR 26724, June 26, 1989; Amdt. 22, 55 FR
1378, Jan. 14, 1990; 61 FR 25554, May 22, 1996; 62 FR 23619, May 1,
1997; 63 FR 9729, Feb. 26, 1998; 64 FR 72261, Dec. 27, 1999; 67 FR
43493, June 27, 2002; 69 FR 53546, Sept. 1, 2004; 70 FR 43262, July 27,
2005; 72 FR 41608, July 31, 2007]
Sec. 226.17a At-risk afterschool care center provisions.
(a) Organizations eligible to receive reimbursement for afterschool
snacks--(1) Eligible organizations. In order to be eligible to receive
reimbursement, organizations must meet the following criteria:
(i) Organizations must meet the definition of an At-risk afterschool
care center in Sec. 226.2. An organization may participate in the
Program either as an independent center or as a child care facility
under the auspices of a sponsoring organization. Public and private
nonprofit centers may not participate under the auspices of a for-profit
sponsoring organization.
(ii) Organizations must operate an eligible afterschool care
program, as described in paragraph (b) of this section.
(iii) Organizations must meet the licensing/approval requirements in
Sec. 226.6(d)(1).
(iv) Except for for-profit centers, at-risk afterschool care centers
must be public, or have tax-exempt status under the Internal Revenue
Code of 1986 or be currently participating in another Federal program
requiring nonprofit status.
(2) Limitations. At-risk afterschool care centers may only claim
reimbursement for snacks served to children who are participating in an
approved afterschool care program, as described in paragraph (b) of this
section. In addition, centers may only claim reimbursement for snacks
served at any
[[Page 242]]
one time to children within the at-risk afterschool care center's
authorized capacity. For-profit centers may only claim reimbursement for
snacks served during a calendar month in which at least 25 percent of
the children in care (enrolled or licensed capacity, whichever is less)
were eligible for free or reduced-price meals or were title XX
beneficiaries. However, children who only participate in the at-risk
afterschool snack component of the Program must not be considered in
determining this percentage.
(b) Eligible at-risk afterschool care programs--(1) Eligible
programs. To be eligible for reimbursement, an afterschool care program
must:
(i) Be organized primarily to provide care for children after school
or on weekends, holidays, or school vacations during the regular school
year (an at-risk afterschool care center may not claim snacks during
summer vacation, unless it is located in the attendance area of a school
operating on a year-round calendar);
(ii) Have organized, regularly scheduled activities (i.e., in a
structured and supervised environment);
(iii) Include education or enrichment activities; and
(iv) Except for Emergency shelters as defined in Sec. 226.2, be
located in an eligible area, as described in paragraph (i) of this
section.
(2) Eligibility limitation. Organized athletic programs engaged in
interscholastic or community level competitive sports are not eligible
afterschool care programs.
(c) Eligibility requirements for children. At-risk afterschool care
centers may claim reimbursement only for snacks served to children who
participate in an approved afterschool care program and who are age 18
or under at the start of the school year.
(d) Licensing requirements for at-risk afterschool care centers. In
accordance with Sec. 226.6(d)(1), if Federal, State or local licensing
or approval is not otherwise required, at-risk afterschool care centers
must meet State or local health and safety standards. When State or
local health and safety standards have not been established, State
agencies are encouraged to work with appropriate State and local
officials to create such standards. Meeting these standards will remain
a precondition for any afterschool center's eligibility for CACFP
nutrition benefits. In cases where Federal, State or local licensing or
approval is required, at-risk afterschool care centers that are
complying with applicable procedures to renew licensing or approval may
participate in the Program during the renewal process, unless the State
agency has information that indicates the renewal will be denied.
(e) Application procedures--(1) Application. An official of the
organization must make written application to the State agency for any
afterschool care program that it wants to operate as an at-risk
afterschool care center.
(2) Required information. At a minimum, an organization must submit:
(i) An indication that the applicant organization meets the
eligibility criteria for organizations as specified in paragraph (a) of
this section;
(ii) A description of how the afterschool care program(s) meets the
eligibility criteria in paragraph (b) of this section;
(iii) In the case of a sponsoring organization, a list of all
applicant afterschool care centers;
(iv) Documentation that permits the State agency to confirm that all
applicant afterschool care centers are located in an eligible area, as
described in paragraph (i) of this section; and
(v) Other information required as a condition of eligibility in the
CACFP must be submitted with an application for participation in
accordance with Sec. 226.6(b)(1).
(f) State agency action on applications--(1) State agency approval.
The State agency must determine the eligibility of the afterschool care
program for each sponsored afterschool care center based on the
information submitted by the sponsoring organization in accordance with
Sec. Sec. 226.6(b)(1) and 226.15(g) and the requirements of this
section. The State agency must determine the eligibility of the
afterschool care programs of independent afterschool care centers based
on the information submitted by the independent center in accordance
with Sec. 226.6(b)(1) and the requirements of this section. The State
agency must determine the
[[Page 243]]
area eligibility of independent at-risk afterschool care centers in
accordance with the requirements of Sec. 226.6(f)(1)(ix)(B). An
approved organization must enter into an agreement with the State agency
as described in paragraph (f)(2) of this section.
(2) Agreement. The State agency must enter into an agreement or
amend an existing agreement with an institution approved to operate one
or more at-risk afterschool care centers pursuant to Sec. 226.6(b)(4).
The agreement must describe the approved afterschool care program(s) and
list the approved center(s). The agreement must also require the
institution to comply with the applicable requirements of this part. If
the institution is a school food authority that is applying to
participate as an at-risk afterschool care center, the State agency must
enter into a single permanent agreement, as specified in Sec.
226.6(b)(4)(ii)(A).
(g) Application process in subsequent years. To continue
participating in the Program, independent at-risk afterschool care
centers or sponsoring organizations of at-risk afterschool care centers
must reapply at time intervals required by the State agency, as
described in Sec. 226.6(b)(3) and (f)(2). Sponsoring organizations of
at-risk afterschool care centers must provide area eligibility data in
compliance with the provisions of Sec. 226.15(g). In accordance with
Sec. 226.6(f)(3)(ii), State agencies must determine the area
eligibility of each independent at-risk afterschool care center that is
reapplying to participate in the Program.
(h) Changes to participating centers. Independent at-risk
afterschool care centers or sponsors of at-risk afterschool care centers
must advise the State agency of any substantive changes to the
afterschool care program. Sponsoring organizations that want to add new
at-risk afterschool care centers must provide the State agency with the
information sufficient to demonstrate that the new centers meet the
requirements of this section.
(i) Area eligibility. Except for emergency shelters, at-risk
afterschool care centers must be located in an area described in
paragraph (a) of the Eligible area definition in Sec. 226.2 and in
paragraph (i)(1) of this section.
(1) Definition. An at-risk afterschool care center is in an eligible
area if it is located in the attendance area of an elementary, middle,
or high school in which at least 50 percent of the enrolled children are
certified eligible for free or reduced-price school meals.
(2) Data used. Area eligibility determinations must be based on the
total number of children approved for free and reduced-price school
meals for the preceding October, or another month designated by the
State agency that administers the National School Lunch Program (the
NSLP State agency). If the NSLP State agency chooses a month other than
October, it must do so for the entire State.
(3) Frequency of area eligibility determinations. Area eligibility
determinations are valid for five years. The State agency may determine
the date in the fifth year in which the next five-year cycle of area
eligibility will begin. The State agency must not routinely require
redeterminations of area eligibility based on updated school data during
the five-year period, except in cases where the State agency has
determined it is most efficient to incorporate area eligibility
decisions into the three-year application cycle. However, a sponsoring
organization, the State agency, or FNS may change the determination of
area eligibility if information becomes available indicating that an at-
risk afterschool care center is no longer area eligible.
(j) Cost of afterschool snacks. All afterschool snacks served under
this section must be made available to participating children at no
charge.
(k) Limit on daily reimbursements. At-risk afterschool care programs
may claim reimbursement only for one afterschool snack per child per
day. A center that provides care to a child under another component of
the Program during the same day may not claim reimbursement for more
than two meals and one snack, or one meal and two snacks, per child per
day, including the afterschool snack. All meals and any snacks in
addition to one snack per child per day must be claimed in accordance
with the requirements for the applicable component of the Program.
[[Page 244]]
(l) Meal pattern requirements for afterschool snacks. Afterschool
snacks must meet the meal pattern requirements for snacks described in
Sec. 226.20(b)(6) and (c)(4).
(m) Time periods for snack service. At-risk afterschool care centers
may only claim snacks served in approved afterschool care programs after
a child's school day or on weekends, holidays, or school vacations
during the regular school year. Afterschool snacks may not be claimed
during summer vacation, unless the at-risk afterschool care center is
located in the attendance area of a school operating on a year-round
calendar.
(n) Reimbursement rate. All snacks served in at-risk afterschool
care centers will be reimbursed at the free snack rate.
(o) Recordkeeping requirements. In addition to the other records
required by this part, at-risk afterschool care centers must maintain:
(1) Daily attendance rosters, sign-in sheets or, with State agency
approval, other methods which result in accurate recording of daily
attendance;
(2) The number of snacks prepared or delivered for each snack
service;
(3) The number of snacks served to participating children for each
snack service; and
(4) Menus for each snack service.
(p) Reporting requirements. In addition to other reporting
requirements under this part, at-risk afterschool care centers must
report the total number of snacks served to eligible children based on
daily attendance rosters or sign-in sheets.
(q) Monitoring requirements. State agencies must monitor independent
centers in accordance with Sec. 226.6(m). Sponsoring organizations of
at-risk afterschool care centers must monitor their centers in
accordance with Sec. 226.16(d)(4).
[72 FR 41608, July 31, 2007]
Sec. 226.18 Day care home provisions.
(a) Day care homes shall have current Federal, State or local
licensing or approval to provide day care services to children. Day care
homes which cannot obtain their license because they lack the funding to
comply with licensing standards may request a total limit per home of
$300 in administrative funds from a sponsoring organization to assist
them in obtaining their license. Day care homes that, at the option of
their sponsoring organization, receive administrative funds for
licensing-related expenses must complete documentation requested by
their sponsor as described in Sec. 226.16(k) prior to receiving any
funds. The agreement must be signed by the sponsoring organization and
the provider and must include the provider's full name, mailing address,
and date of birth. Day care homes which are complying with applicable
procedures to renew licensing or approval may participate in the Program
during the renewal process, unless the State agency has information
which indicates that renewal will be denied. If licensing or approval is
not available, a day care home may participate in the Program if:
(1) The right of the sponsoring organization, the State agency, the
Department, and other State and Federal officials to make announced or
unannounced reviews of the day care home's operations and to have access
to its meal service and records during its normal hours of child care
operations. For day care homes participating July 29, 2002, the
sponsoring organization must amend the current agreement no later than
August 29, 2002;
(2) It demonstrates compliance with CACFP child care standards or
applicable State or local child care standards to the State agency.
(b) Day care homes participating in the program shall operate under
the auspices of a public or private nonprofit sponsoring organization.
Sponsoring organizations shall enter into a written permanent agreement
with each sponsored day care home which specifies the rights and
responsibilities of both parties. Nothing in the preceding sentence
shall be construed to limit the ability of the sponsoring organization
to suspend or terminate the permanent agreement in accordance with Sec.
226.16(l). This agreement shall be developed by the State agency, unless
the State agency elects, at the request of the sponsor, to approve an
agreement developed by the sponsor. At a minimum, the agreement shall
embody:
[[Page 245]]
(1) The right of the sponsoring organization, the State agency, and
the Department to visit the day care home and review its meal service
and records during its hours of child care operations;
(2) The responsibility of the sponsoring organization to require key
staff, as defined by the State agency, to receive Program training prior
to the day care home's participation in the Program, and at least
annually thereafter, on content areas established by the State agency,
and the responsibility of the day care home to participate in that
training;
(3) The responsibility of the day care home to prepare and serve
meals which meet the meal patterns specified in Sec. 226.20;
(4) The responsibility of the day care home to maintain records of
menus, and of the number of meals, by type, served to enrolled children;
(5) The responsibility of the day care home to promptly inform the
sponsoring organization about any change in the number of children
enrolled for care or in its licensing or approval status;
(6) The meal types approved for reimbursement to the day care home
by the State agency;
(7) The right of the day care home to receive in a timely manner the
full food service rate for each meal served to enrolled children for
which the sponsoring organization has received payment from the State
agency. However, if, with the home provider's consent, the sponsoring
organization will incur costs for the provision of program foodstuffs or
meals in behalf of the home, and subtract such costs from Program
payments to the home, the particulars of this arrangement shall be
specified in the agreement. The sponsoring organization must not
withhold Program payments to any family day care home for any other
reason, except that the sponsoring organization may withhold from the
provider any amounts that the sponsoring organization has reason to
believe are invalid, due to the provider having submitted a false or
erroneous meal count;
(8) The right of the sponsoring organization or the day care home to
terminate the agreement for cause or, subject to stipulations by the
State agency, convenience;
(9) A prohibition of any sponsoring organization fee to the day care
home for its Program administrative services;
(10) If the State agency has approved a time limit for submission of
meal records by day care homes, that time limit shall be stated in the
agreement;
(11) The responsibility of the sponsoring organization to inform
tier II day care homes of all of their options for receiving
reimbursement for meals served to enrolled children. These options
include: electing to have the sponsoring organization attempt to
identify all income-eligible children enrolled in the day care home,
through collection of free and reduced price applications and/or
possession by the sponsoring organization or day care home of other
proof of a child or household's participation in a categorically
eligible program, and receiving tier I rates of reimbursement for the
meals served to identified income-eligible children; electing to have
the sponsoring organization identify only those children for whom the
sponsoring organization or day care home possess documentation of the
child or household's participation in a categorically eligible program,
under the expanded categorical eligibility provision contained in Sec.
226.23(e)(1), and receiving tier I rates of reimbursement for the meals
served to these children; or receiving tier II rates of reimbursement
for all meals served to enrolled children;
(12) The responsibility of the sponsoring organization, upon the
request of a tier II day care home, to collect applications and
determine the eligibility of enrolled children for free or reduced price
meals;
(13) The State agency's policy to restrict transfers of day care
homes between sponsoring organizations;
(14) The responsibility of the day care home to notify their
sponsoring organization in advance whenever they are planning to be out
of their home during the meal service period. The agreement must also
state that, if this procedure is not followed and an unannounced review
is conducted when the children are not present in the day care home,
claims for meals that would have been
[[Page 246]]
served during the unannounced review will be disallowed;
(15) The day care home's opportunity to request an administrative
review if a sponsoring organization issues a notice of proposed
termination of the day care home's Program agreement, or if a sponsoring
organization suspends participation due to health and safety concerns,
in accordance with Sec. 226.6(1)(2); and
(16) If so instructed by its sponsoring organization, the day care
home's responsibility to distribute to parents a copy of the sponsoring
organization's notice to parents.
(c) Each day care home must serve one or more of the following meal
types--breakfast, lunch, supper, and snack. Reimbursement may not be
claimed for more than two meals and one snack, or one meal and two
snacks, provided daily to each child.
(d) Each day care home participating in the program shall serve the
meal types specified in its approved application in accordance with the
meal pattern requirements specified in Sec. 226.20. Menu records shall
be maintained to document compliance with these requirements. Meals
shall be served at no separate charge to enrolled children;
(e) Each day care home must maintain on file documentation of each
child's enrollment and must maintain daily records of the number of
children in attendance and the number of meals, by type, served to
enrolled children. Such documentation of enrollment must be updated
annually, signed by a parent or legal guardian, and include information
on each child's normal days and hours of care and the meals normally
received while in care. Each tier II day care home in which the provider
elects to have the sponsoring organization identify enrolled children
who are eligible for free or reduced price meals, and in which the
sponsoring organization employs a meal counting and claiming system in
accordance with Sec. 226.13(d)(3)(i), shall maintain and submit each
month to the sponsoring organization daily records of the number and
types of meals served to each enrolled child by name. Payment may be
made for meals served to the provider's own children only when (1) such
children are enrolled and participating in the child care program during
the time of the meal service, (2) enrolled nonresident children are
present and participating in the child care program and (3) providers'
children are eligible to receive free or reduced-price meals.
Reimbursement may not be claimed for meals served to children who are
not enrolled, or for meals served at any one time to children in excess
of the home's authorized capacity or for meals served to providers'
children who are not eligible for free or reduced-price meals.
(f) The State agency may not require a day care home or sponsoring
organization to maintain documentation of home operating costs.
(g) Each day care home shall comply with the recordkeeping
requirements established in Sec. 226.10(d) and in this section. Failure
to maintain such records shall be grounds for the denial of
reimbursement.
[47 FR 36527, Aug. 20, 1982, as amended by Amdt. 5, 49 FR 18989, May 4,
1984; 50 FR 8580, Mar. 4, 1985; 52 FR 36907, Oct. 2, 1987; Amdt. 22, 55
FR 1378, Jan. 14, 1990; 61 FR 25554, May 22, 1996; 62 FR 903, Jan. 7,
1997; 63 FR 9105, Feb. 24, 1998; 63 FR 9729, Feb. 26, 1998; 64 FR 72261,
Dec. 27, 1999; 67 FR 43493, June 27, 2002; 69 FR 53546, Sept. 1, 2004;
70 FR 34633, June 15, 2005; 72 FR 41610, July 31, 2007]
Sec. 226.19 Outside-school-hours care center provisions.
(a) Outside-school-hours care centers may participate in the Program
either as independent centers or under the auspices of a sponsoring
organization; Provided, however, That public and private nonprofit
centers shall not be eligible to participate in the Program under the
auspices of a for-profit sponsoring organization. Outside-school-hours
care centers participating as independent centers shall comply with the
provisions of Sec. 226.15.
(b) All outside-school-hours care centers, independent or sponsored,
shall meet the following requirements:
(1) In accordance with Sec. 226.6(d)(1), if Federal, State or local
licensing or approval is not otherwise required, outside-school-hours
care centers must meet State or local health and safety standards. When
State or local health
[[Page 247]]
and safety standards have not been established, State agencies are
encouraged to work with appropriate State and local officials to create
such standards. Meeting these standards will remain a precondition for
any outside-school-hours care center's eligibility for CACFP nutrition
benefits. In cases where Federal, State or local licensing or approval
is required, outside-school-hours care centers that are complying with
applicable procedures to renew licensing or approval may participate in
the Program during the renewal process, unless the State agency has
information that indicates the renewal will be denied.
(2) Except for for-profit centers, outside-school-hours care centers
shall be public, or have tax-exempt status under the Internal Revenue
Code of 1986.
(3) Nonresidential public or private nonprofit schools which provide
organized child care programs for school children may participate in the
Program as outside-school-hours care centers if:
(i) Children participate in a regularly scheduled program that meets
the criteria of paragraph (b)(1) of this section. The program is
organized for the purpose of providing services to children and is
distinct from any extracurricular programs organized primarily for
scholastic, cultural, or athletic purposes; and
(ii) Separate Program records are maintained.
(4) Outside-school-hours care centers shall be eligible to serve one
or more of the following meal types: breakfasts, snacks and suppers. In
addition, outside-school-hours care centers shall be eligible to serve
lunches to enrolled children during periods of school vacation,
including weekends and holidays, and to children attending schools which
do not offer a lunch program. Notwithstanding the eligibility of
outside-school-hours care centers to serve Program meals to children on
school vacation, including holidays and weekends, such centers shall not
operate under the Program on weekends only.
(5) Each outside-school-hours care center participating in the
Program shall claim only the meal types specified in its approved
application and served in compliance with the meal pattern requirements
of Sec. 226.20. Reimbursement may not be claimed for more than two
meals and one snack provided daily to each child or for meals served to
children at any one time in excess of authorized capacity. For-profit
centers may not claim reimbursement for meals served to children in any
month in which less than 25 percent of the children in care (enrolled or
licensed capacity, whichever is less) were eligible for free or reduced
price meals or were title XX beneficiaries.
(6) Each outside-school-hours care center must require key
operational staff, as defined by the State agency, to attend Program
training prior to the center's participation in the Program, and at
least annually thereafter, on content areas established by the State
agency. Each meal service must be supervised by an adequate number of
operational personnel who have been trained in Program requirements as
outlined in this section. Operational personnel must ensure that:
(i) Meals are served only to children and to adults who perform
necessary food service labor;
(ii) Meals served to children meet the meal pattern requirements
specified in Sec. 226.20;
(iii) Meals served are consumed on the premises of the centers;
(iv) Accurate records are maintained; and
(v) The number of meals prepared or ordered is promptly adjusted on
the basis of participation trends.
(7) Each outside-school-hours care center shall accurately maintain
the following records:
(i) Information used to determine eligibility for free or reduced
price meals in accordance with Sec. 226.23(e)(1);
(ii) Number of meals prepared or delivered for each meal service;
(iii) Daily menu records for each meal service;
(iv) Number of meals served to children at each meal service;
(v) Number of children in attendance during each meal service;
(vi) Number of meals served to adults performing necessary food
service labor for each meal service; and
[[Page 248]]
(vii) All other records required by the State agency financial
management system.
(8) An outside-school-hours care center may utilize existing school
food service facilities or obtain meals from a school food service
facility, and the pertinent requirements of this part shall be embodied
in a written agreement between the outside-school-hours care center and
the school. The center shall maintain responsibility for all Program
requirements set forth in this part.
(c) Each outside-school-hours care center shall comply with the
recordkeeping requirements established in Sec. 226.10(d), in paragraph
(b) of this section and, if applicable, in Sec. 226.15(e). Failure to
maintain such records shall be grounds for the denial of reimbursement.
[47 FR 36527, Aug. 20, 1982, as amended at 52 FR 36907, Oct. 2, 1987; 54
FR 26724, June 26, 1989; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 56 FR
58175, Nov. 16, 1991; 61 FR 25554, May 22, 1996; 62 FR 23619, May 1,
1997; 64 FR 72261, Dec. 27, 1999; 67 FR 43493, June 27, 2002; 69 FR
53546, Sept. 1, 2004; 70 FR 43262, July 27, 2005; 72 FR 41603, 41610,
July 31, 2007]
Sec. 226.19a Adult day care center provisions.
(a) Adult day care centers may participate in the Program either as
independent centers or under the auspices of a sponsoring organization;
provided, however, that public and private nonprofit centers shall not
be eligible to participate in the Program under the auspices of a for-
profit sponsoring organization. Adult day care centers participating as
independent centers shall comply with the provisions of Sec. 226.15.
(b) All adult day care centers, independent or sponsored, shall meet
the following requirements:
(1) Adult day care centers shall provide a community-based group
program designed to meet the needs of functionally impaired adults
through an individual plan of care. Such a program shall be a
structured, comprehensive program that provides a variety of health,
social and related support services to enrolled adult participants.
(2) Adult day care centers shall provide care and services directly
or under arrangements made by the agency or organization whereby the
agency or organization maintains professional management responsibility
for all such services.
(3) Adult day care centers shall have Federal, State or local
licensing or approval to provide day care services to functionally
impaired adults (as defined in Sec. 226.2) or individuals 60 years of
age or older in a group setting outside their home or a group living
arrangement on a less than 24-hour basis. Adult day care centers which
are complying with applicable procedures to renew licensing or approval
may participate in the Program during the renewal process, unless the
State agency has information which indicates that renewal will be
denied.
(4) Except for for-profit centers, adult day care centers shall be
public, or have tax-exempt status under the Internal Revenue Code of
1986.
(5) Each adult day care center participating in the Program must
serve one or more of the following meal types--breakfast, lunch, supper,
and snack. Reimbursement may not be claimed for more than two meals and
one snack, or one snack and two meals, provided daily to each adult
participant.
(6) Each adult day care center participating in the Program shall
claim only the meal types specified in its approved application in
accordance with the meal pattern requirements specified in Sec. 226.20.
Participating centers may not claim CACFP reimbursement for meals
claimed under part C of title III of the Older Americans Act of 1965.
Reimbursement may not be claimed for meals served to persons who are not
enrolled, or for meals served to participants at any one time in excess
of the center's authorized capacity, or for any meal served at a for-
profit center during a calendar month when less than 25 percent of
enrolled participants were title XIX or title XX beneficiaries. Menus
and any other nutritional records required by the State agency shall be
maintained to document compliance with such requirements.
(7) An adult day care center may obtain meals from a school food
service facility, and the pertinent requirements of this part shall be
embodied in
[[Page 249]]
a written agreement between the center and school. The center shall
maintain responsibility for all Program requirements set forth in this
part.
(8) Adult day care centers shall collect and maintain documentation
of the enrollment of each adult participant including information used
to determine eligibility for free and reduced price meals in accordance
with Sec. 226.23(e)(1).
(9) Each adult day care center must maintain daily records of time
of service meal counts by type (breakfast, lunch, supper, and snacks)
served to enrolled participants, and to adults performing labor
necessary to the food service.
(10) Each adult day care center shall maintain records on the age of
each enrolled person. In addition, each adult day care center shall
maintain records which demonstrate that each enrolled person under the
age of 60 meets the functional impairment eligibility requirements
established under the definition of ``functionally impaired adult''
contained in this part. Finally, each adult day care center shall
maintain records which document that qualified adult day care
participants reside in their own homes (whether alone or with spouses,
children or guardians) or in group living arrangements as defined in
Sec. 226.2.
(11) Each adult day care center must require key operational staff,
as defined by the State agency, to attend Program training prior to the
facility's participation in the Program, and at least annually
thereafter, on content areas established by the State agency. Each meal
service must be supervised by an adequate number of operational
personnel who have been trained in Program requirements as outlined in
this section.
(c) Each adult day care center shall comply with the recordkeeping
requirements established in Sec. 226.10(d), in paragraph (b) of this
section and, if applicable, in Sec. 226.15(e). Failure to maintain such
records shall be grounds for the denial of reimbursement.
[53 FR 52591, Dec. 28, 1988, as amended by Amdt. 22, 55 FR 1378, Jan.
14, 1990; 61 FR 25554, May 22, 1996; 62 FR 23619, May 1, 1997; 64 FR
72261, Dec. 27, 1999; 67 FR 43493, June 27, 2002; 69 FR 53546, Sept. 1,
2004; 72 FR 41610, July 31, 2007]
Sec. 226.20 Requirements for meals.
(a) Except as otherwise provided in this section, each meal served
in the Program shall contain, as a minimum, the indicated food
components:
(1) A breakfast shall contain: (i) Fluid milk as a beverage or on
cereal, or used in part for each purpose;
(ii) Vegetable(s) or fruit(s) or full-strength vegetable or fruit
juice, or any combination of these foods;
(iii) Whole-grain or enriched bread; or cornbread, biscuits, rolls,
muffins, etc., made with whole-grain or enriched meal or flour; or
whole-grain or enriched or fortified cereal; or cooked whole-grain or
enriched pasta or noodle products such as macaroni, or cereal grains
such as rice, bulgur, or corn grits; or any combination of these foods.
(2) Lunch shall contain: (i) Fluid milk as a beverage;
(ii)(A) Lean meat, poultry or fish; alternate protein products; or
cheese; or an egg; or cooked dry beans or peas; or peanut butter; or any
combination of these foods. These foods must be served in a main dish,
or in a main dish and one other menu item, to meet this requir